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ISAYEV v. RUSSIA - 20756/04 [2009] ECHR 1610 (22 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1610.html
Cite as:
[2009] ECHR 1610,
[2005] 41 EHRR 38,
41 EHRR 38
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FIRST
SECTION
CASE OF ISAYEV v. RUSSIA
(Application
no. 20756/04)
JUDGMENT
STRASBOURG
22 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 Isayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 1 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 20756/04) 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 Sergey Viktorovich
Isayev (“the applicant”), on 19 April 2004.
The applicant was represented by lawyers
of the Human Rights Centre Memorial. The Russian Government
(“the Government”) were represented by Mr P. Laptev and
Mrs V. Milinchuk, former Representatives of the Russian Federation at
the European Court of Human Rights.
The
applicant alleged, in particular, that he had been subjected to
torture by the police, that the prosecution authorities had not
carried out an effective investigation into the incident, that his
detention on remand had been unlawful and excessively long and that
his applications for release had not been examined speedily.
On
21 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1955 and lived until his arrest in the town of
Astrakhan.
A. Arrest and alleged ill-treatment by the police
On
2 March 2003 the office of the Chernoyarskiy District Prosecutor of
Astrakhan opened a criminal investigation into the murder of Ms P.
1. Events between 6 and 15 March 2003
On
6 March 2003 the applicant was arrested and taken to the
Chernoyarskiy District Police Department. According to the applicant,
police officers severely beat him up to ferret out information and
elicit a confession to the murder. Being unable to bear the beatings,
on 8 March 2003 he wrote a statement confessing to having fired his
rifle at a window of Ms P's house. He claimed that he had not
intended to kill anyone.
On
8 March 2003 an investigator drew up a report restating the
applicant's confession. The applicant signed the report and filed a
written request for provision of assistance by a lawyer, Mr C. He
noted that he had confessed under duress and that the investigator
had not informed him of his rights as an accused, in violation of
Article 51 of the Russian Constitution.
On
the same day a deputy Chernoyarskiy District Prosecutor filed an
application with the Chernoyarskiy District Court, seeking
authorisation of the applicant's detention for an additional
forty-eight hours. The applicant's lawyer, Mr C., disputed the
necessity to detain the applicant. In addition, he drew the District
Court's attention to the applicant's appearance, arguing that the
police officers had maltreated the applicant to force him to confess
to the murder. While accepting the deputy prosecutor's request, the
District Court held, inter alia, that the applicant had left
the crime scene and had hidden the crime weapon and that therefore he
was liable to abscond and pervert the course of justice.
On
11 March 2003 the Chernoyarskiy District Court authorised the
applicant's further detention on remand, holding as follows:
“At the same time the court considers that the
materials presented by the investigating authorities - records of
investigative actions and operative measures - make it sufficiently
clear that the arrest of [the applicant], that is the person who may
have taken part in the above-mentioned criminal offence, was
well-founded and taking into account the particular dangerousness of
that criminal offence committed in grave circumstances, belonging to
the category of particularly serious criminal offences, the court
concludes that it is impossible to apply another, more lenient,
preventive measure to [the applicant].”
The
applicant and his lawyer, Mr C., attended the hearing. The decision
was upheld on appeal on 20 March 2003.
As shown by an extract from the registration log drawn
up in the detention unit of the Chernoyarskiy District Police
Department and presented by the Government, on 9 March 2003, at
approximately 7.25 p.m., an ambulance was called to the
applicant, who was complaining about a headache. The ambulance was
called again at 11.55 a.m. and 9.30 p.m. on 12 March 2003. In
response to the morning call an emergency doctor noted in the
registration log that the applicant was suffering from neurasthenia
syndrome and high blood pressure. On the latter occasion, a doctor
made an entry in the registration log, noting that the applicant had
refused a medical examination and assistance. According to the
applicant, an emergency doctor did not want to record his head injury
out of fear of reprisal.
On
13 March 2003 a police officer working in the detention unit of the
Chernoyarskiy District Police Department reported to the head of the
police department as follows:
“... during my duty in the detention unit of the
Chernoyarskiy District Police Department from 6.00 p.m. on 12 March
2003 to 9.00 a.m. on 13 March 2003 [the applicant] was in cell no. 1;
[he] started hitting his head against a wall; [he] did not respond to
orders [prompting him] to stop his actions. I reported to the officer
on duty in the [police department] about [the applicant's] actions;
after that [the applicant] was transferred to a cell for
administrative arrestees. On 13 March 2003, at 8.50 a.m., during the
replacement of duty officers, [the applicant] started hitting his
head against the metal bar in the cell for administrative arrestees,
thus causing a head injury.
I, together with a staff sergeant, police officer, Mr
L., and police officer, Mr M., stopped his actions and applied
special means, handcuffs. [The applicant] was provided with first
aid. After that an ambulance was called.”
On
the same day an escorting police officer, Mr M., wrote a report
addressed to the head of the Chernoyarskiy District Police
Department. The report read as follows:
“[I] hereby inform you that on 13 March 2003,
after the transfer, at approximately 8.50 a.m., an arrestee, [the
applicant], was in a cell for administrative arrestees. [He] started
hitting his head against a metal bar, thus causing injuries to
himself. After that special means, handcuffs, were applied to [the
applicant] and first aid was provided.”
Another
escorting officer, Mr Po., submitted an identically worded report.
An officer on duty made an entry in the registration
log, stating that an ambulance was called to the applicant on 13
March 2003, at 9.40 a.m., in response to “a fit of hysteria,
injuries to the scalp, brain concussion”.
According to the applicant, his brother, who is a
resuscitation specialist, visited him on 14 March 2003 in the
detention unit and saw his numerous injuries. The applicant
complained to his brother that police officers had repeatedly hit him
on the head with a small plastic bottle filled with water. On the
same day the applicant was taken to the Chernoyarskiy District
Central Hospital. His state of health was considered to be critical.
On the following day he was transferred to the resuscitation unit of
the neurosurgery department of Astrakhan Regional Hospital no. 2. The
applicant was in a coma of the second degree. The relevant part of an
extract from medical history no. 1069/298 drawn up in the
neurosurgery department read as follows:
“A patient [the applicant], was undergoing
in-patient treatment from 15 March to 10 April 2003. When
admitted [to the hospital], he did not make any complaints because of
his grave condition. According to the escorting persons, a week
before his admission [to the hospital], while under arrest, the
patient had hit his head against bars... During the treatment the
patient stated that he had been beaten up by police officers.
Objectively: The general condition is grave... Locally:
[there are] vast bruises, measuring from 3 to 5 centimetres, on the
skin of the frontoparietal sphere; [the bruises] are covered with
brown scab. There are subcutaneous yellow haematomas, measuring 4
centimetres [in width] and 5 centimetres [in length], in the middle
one-third of the right forearm; in the middle one-third of the left
shoulder there is a subcutaneous yellow haematoma, measuring 2
centimetres [in width] and 2 centimetres [in length]. [There is]
a subcutaneous haematoma, measuring 4 centimetres [in width] and
5 centimetres [in length], on the chest (with hemosiderin). [The
patient] does not control the functions of his pelvic organs, he
urinates uncontrollably...
Diagnosis: A brain injury of medium severity. A
subarachnoid haematoma. Injuries, bruises to the head and
extremities.”
On 19
April 2003 the applicant was transferred from the hospital back to
the detention unit.
In
the meantime, on 15 March 2003 the head of the duty shift of the duty
unit in the Chernoyarskiy District Police Department issued a report
which read as follows:
“[I] hereby inform you that on 15 March 2003
information was received from the duty unit of the Chernoyarskiy
District Police Department that [the applicant] had been arrested on
suspicion of having committed a criminal offence proscribed by
Article 105 of the Russian Criminal Code; [he], in the detention unit
of the police department, had injured himself, having hit his head
against the walls; after that [he] had been admitted to Chernoyarskiy
District Central Hospital, from which, within a day, he had been
transferred to a medical institution in Astrakhan – hospital
no. 2; [he had been escorted] by two armed police officers... [The
applicant's] preliminary diagnosis is a craniocerebral injury”.
On the same day an investigator of the Chernoyarskiy
District Prosecutor's office, in the presence of two attesting
witnesses and an expert criminologist, examined the premises of the
detention unit of the Chernoyarskiy District Police Department. The
examination record contained a lengthy description of the corridors,
duty offices and cells. The relevant part of the record read as
follows:
“...the entrance to [the cell for administrative
detainees] is through a metal lattice door which is built from metal
reinforcement bars welded together. The cell is a room with concrete
walls... During the examination of the cell entrance door a fallow
stain, looking like blood [and] measuring 0.7 centimetre, was
discovered on the door at a height of 1.30 metre from the floor, 0.85
metre from the upper part of the door and 1.15 metre from the right
wall. During the examination of the metal bars of that cell a fallow
stain, looking like blood and measuring 2 centimetres in width and
2.5 centimetres in length, was discovered at a height of 1.30
metre from the floor and 1.15 metre from the adjacent right wall. ...
blood was collected from the scene and bagged.
...
During the examination of cell no. 1, fallow stains
looking like blood and measuring 1 centimetre to 1 centimetre, 3
centimetres to 3 centimetres were discovered in the far right corner
of the cell, on the right wall, 2.5 centimetres from the wall, facing
the entrance, and 25 centimetres from the wooden bunk. Those stains
are located 5 centimetres from each other. That substance was
collected from the scene and bagged.”
2. Investigation into complaints of ill-treatment
On 8 March 2003 the applicant's lawyer, Mr C., filed a
complaint with the prosecution authorities, alleging that the
applicant had been severely beaten up in the police station after his
arrest and asking for the identification of the police officers who
had participated in the beatings.
(a) Decision of 17 March 2003 and
subsequent court proceedings
On 17 March 2003 an investigator of the Chernoyarskiy
District prosecutor's office dismissed the complaint about the
beatings as unsubstantiated. The investigator based his decision on
the following evidence:
-
Statements by the police officers who had claimed that on 12 March
2003 the applicant, who had been detained in cell no. 1, had begun
hitting his head against a wall. He had ignored policemen's orders to
discontinue the unlawful behaviour and had been transferred to a
special cell for administrative detainees, so that the police
officers could observe him and prevent him from hurting himself. In
the cell for administrative detainees the applicant had once again
begun hitting his head against metal bars. Handcuffs had been applied
to him and he had been provided with medical assistance.
-
Testimony by the applicant's fellow inmate, Mr I., who testified that
on 12 March 2003 he had been detained in cell no. 1 together
with the applicant. At approximately 10 p.m. the applicant had begun
hitting his head against a wall. Mr I. had called the officer on duty
and the applicant had been transferred to another cell. Mr I. noted
that he had not seen or heard whether the policemen had beaten the
applicant up.
-
Testimony by an emergency doctor, Mr B., who stated that on 12 March
2003, at approximately 10.20 p.m., he had arrived at the Chernoyarkiy
District Police Department. The officer on duty had asked him and his
colleagues to provide the applicant with medical assistance.
According to the officer on duty, the applicant had not felt well. Mr
B. had attempted to examine the applicant, but the latter had refused
any examination. During the visual examination of the applicant's
head, Mr B. had not noticed any injuries. The applicant had been very
agitated.
-
Statements by an emergency doctor, Ms K., who stated that on 13 March
2003, at approximately 9.30 a.m., she had received a call from the
Chernoyarskiy District Police Department. She had been informed that
a detainee had hit his head against a wall. When she had arrived at
the police department, she had seen the applicant sitting on a chair
with his hands handcuffed behind his back and with his head on a
pillow. The applicant had been very nervous and had tried to break
away. She had examined him and discovered three parallel injuries in
the fibrous part of his head. She had made a bandage and given him an
injection of relanium. The applicant had been diagnosed with a fit of
hysteria and prescribed an examination by a surgeon and a
neuropathologist.
-
The record of the examination of the detention unit, including the
cells where the applicant had been detained, performed on 15 March
2003.
- An
expert report, according to which stains discovered during the
examination of the cells in the detention unit on 15 March 2003
consisted of the blood of a person, “not excluding the
applicant”.
The
applicant only learned about the decision of 17 March 2003 in July
2003 and on 18 August 2003 his lawyer appealed against that decision
to a court.
On
22 August 2003 the Chernoyarskiy District Court annulled the decision
of 17 March 2003, noting procedural defects in the investigator's
decision, and ordered an additional investigation into the
applicant's ill-treatment complaints.
(b) Decision of 12 September 2003
On 12 September 2003, following an additional
investigation into the applicant's allegations of ill-treatment, an
investigator of the Chernoyarskiy District Prosecutor's office
refused to institute criminal proceedings against the police
officers, finding no case to be answered. In addition to the
witnesses' statements which had served as the basis for the decision
of 17 March 2003, the investigator relied on the following evidence:
-
Additional statements by an emergency doctor, Mr B., who stressed
that the applicant had not had any visible injuries, including on the
head, when Mr B. had seen him on 12 March 2003, at approximately
10.20 p.m..
-
Statements by Mr S., who testified that he had been detained in cell
no. 1 with the applicant and Mr I. On a date which Mr S. had been
unable to recall, the applicant, lying on the bunk, had begun hitting
his head against a wall. He had hit his head three or four times and
had broken the skin on the head. Mr S. and Mr I. had called an
officer on duty and asked to transfer the applicant to another cell.
Their request had been satisfied. No force had been used against the
applicant.
-
Additional testimony by Mr I., who confirmed statements given by Mr
S..
-
Statements by a psychiatrist, Ms E., who submitted that on 14 March
2003 she had examined the applicant who had acted normally and
answered her questions. He had complained about pain in a hip. She
had examined him but had found no injuries on his hip. The applicant
had had an injury on the fibrous part of his head. The injury had
been medically treated.
-
Statements by an escorting officer, Mr La., who noted that on
13 March 2003, at approximately 10.20 p.m., he had noticed that
the applicant, who had been lying on the bunk, had started hitting
his head against the wall. The applicant had been transferred to a
cell for administrative arrestees. On 14 March 2003, at approximately
8.00 a.m., the applicant had grabbed the metal bars with his hands
and had begun hitting his head against the bars. A police officer, Mr
Lu., had stuck his hands between the bars to stop the applicant from
hurting himself. At the same time, the applicant, trying to overcome
Mr Lu.'s resistance, began throwing himself against the metal bars.
Mr La. with the assistance from officers M. and Po. had dragged the
applicant from the metal bars and had started holding him. The
applicant had tried to resist the officers, attempting to hit his
head against the bars. Mr Po. had run to the duty unit to call an
ambulance. Mr La. had taken a towel and had attempted to stop the
bleeding. Doctors had arrived at 9.20 p.m. They had unbound the
injury and had applied on a bandage. After the doctors had left, soft
items had been placed around the applicant and a pillow had been put
under his head.
-
Similar statements given by the police officer, Mr Po.
On
25 September 2003 the Chernoyarskiy District Prosecutor annulled the
decision of 12 September 2003 and ordered that an expert medical
examination be performed and that an expert answer questions as to
how the applicant had received the injuries, how grave the injuries
had been and whether they could have resulted from his own actions.
(c) Decision of 30 September 2003
On
30 September 2003 an investigator of the Chernoyarskiy District
Prosecutor's office once again dismissed the applicant's request for
institution of criminal proceedings. The investigator based his
decision on the statements by the witnesses which had appeared in the
decisions of 17 March and 12 September 2003 and on an expert
medical opinion.
According to the expert report of 29 September 2003,
the applicant had had the following injuries: a closed craniocerebral
injury with a brain injury of medium severity, a subarachnoid
haematoma in the right occipital region of the head, bruises on the
frontoparietal sphere, an injury in the middle one-third of the right
forearm and an injury in the middle one-third of the left shoulder.
The head injuries had been caused by a firm blunt object (objects),
as a result of the applicant's falling on a surface or owing to “free
concussion of the head by a blunt object”. The expert concluded
that the most probable cause of the closed craniocerebral injury had
been the applicant's own actions, without any “external
action”. As regards the remaining injuries, the expert
considered that they had also been caused by the application of a
firm blunt object (or objects) and that it had been impossible to
establish the exact date when they had been caused. The expert did
not exclude the possibility that the applicant could also have
self-inflicted those injuries.
The
applicant's lawyers appealed against the decision of 30 September
2003 to the Chernoyarskiy District Court, arguing that no steps had
been taken to investigate the applicant's allegations that he had
been beaten between 6 and 8 March 2003, although that issue had
already been raised before the prosecution authorities by the
applicant's lawyer, Mr C., on 8 March 2003. They pointed to
the fact that the investigators had never interviewed the applicant
about the events in March 2003.
On
25 November 2003 the Chernoyarskiy District Court held that the
decision of 30 September 2003 had been lawful and substantiated.
However, it noted that the investigator had not questioned the
applicant in connection with his complaints about the confession
under duress, neither had he questioned two police officers who had
been present during the applicant's confession. The District Court
concluded that the investigator should perform an additional
investigation.
On
10 December 2003 the prosecutor of the Chernoyarskiy District,
relying on the court's decision of 25 November 2003, annulled the
decision of 30 September 2003 and ordered an additional investigation
into the applicant's complaints about beatings.
On
22 January 2004 the Astrakhan Regional Court quashed the District
Court's decision of 25 November 2003 and remitted the matter for a
fresh examination. The Regional Court held that on 25 November 2003
the District Court had failed to substantiate its conclusions
concerning the lawfulness of the investigator's decision of 30
September 2003. The Regional Court also pointed out that the District
Court had made contradictory findings.
On
18 February 2004 the Chernoyarskiy District Court re-examined the
decision of 30 September 2003 and considered it to be lawful and
well-founded.
On
22 July 2004 the Astrakhan Regional Court upheld the decision of
18 February 2004. The Regional Court held that the District
Court had taken into consideration and assessed all the circumstances
of the applicant's case which could have influenced the District
Court's conclusions.
(d) Decision of 15 December 2003
On 15 December 2003, following an additional
investigation into the applicant's allegations of ill-treatment, an
assistant Chernoyarskiy District Prosecutor dismissed the applicant's
ill-treatment allegations. The assistant concluded that “no
injuries had been caused to [the applicant] by the police officers in
the period from 6 to 8 March 2003” and that the injuries which
had been discovered on the applicant's body on 13 March 2003 had
resulted from his own actions. The assistant based his decision on
the same evidence as the decisions of 17 March, 12 and 30
September 2003. In addition, he had questioned the applicant, police
officers who had witnessed the applicant confessing on 8 March 2003,
the emergency doctor, Mr B., and an expert who had examined the
applicant on 9 March 2003. Those statements were as follows:
-
The applicant testified that between 6 and 8 March 2003 police
officers had severely beaten him up in the police station in an
attempt to extract a confession from him. On 8 March 2003, after the
first meeting with his lawyer, Mr C., he had complained about the
beatings to a prosecutor. On 9 March 2003 he had been examined by a
medical expert. He had complained to the expert about pain in the
head, neck, chest and right hip; however, the expert had only
examined his head. On the same day he had again been beaten up by a
police officer, Mr Po. According to the applicant, several days later
two police officers had lifted him up and had thrown him against
metal bars in a cell for administrative arrestees. The applicant had
lost consciousness. When he had regained consciousness, he had
discovered that he had been handcuffed to a metal bar. He had fainted
again and had only regained consciousness in the hospital.
- Mr
B., the emergency doctor, supplemented his previous statement. He
noted that on 9 March 2003, at approximately 7.20 p.m., he had been
called to the Chernoyarskiy District Police Department to assist the
applicant who had been complaining about a headache. He had examined
the applicant and had not discovered any injuries on his body and
head. On 12 March 2003, at approximately 10.20 p.m., he had again
been called to the Police Department to treat the applicant. The
latter had not had any injuries.
-
The expert stated that on 9 March 2003 an investigator and police
officers had brought the applicant for a medical examination. In
their presence he had examined the applicant, who had complained
about the pain in the head and right hip. The applicant had refused
to explain the nature and cause of the pain. The expert had examined
the applicant's chest, stomach, back, legs, hands, head and neck and
had not discovered any injuries.
The
decision of 15 December 2003 was not served on the applicant or his
lawyer. On 29 and 30 December 2003 the lawyer unsuccessfully asked
the prosecutor to issue him with a copy of the decision of
15 December 2003.
On
7 October 2004, upon the applicant's complaint, the Chernoyarskiy
District Court examined the decision of 15 December 2003 and
considered it lawful. The District Court held as follows:
“Having heard the parties and studied the
case-file, the court decides to dismiss the complaint. The court is
taking this decision on the basis of the materials in the case-file
submitted and examined at the court hearing.
On 10 December 2003 the Chernoyarskiy District
Prosecutor decided to annul the decision of 30 September 2003 and to
perform an additional investigation into the events concerning the
infliction of injuries on [the applicant]. An assistant prosecutor,
Ms S., was entrusted with the performance of the investigation. In
the course of the investigation certain violations of the law, which
had occurred during the investigation,... [leading] to the decision
of 30 September 2003, were remedied. Thus [the investigator]
questioned [the applicant], the police officers, the emergency
doctors and other persons who had been present in the cell of the
temporary detention unit of the Chernoyarskiy District Police
Department during the infliction of injuries by [the applicant].
Assessing the foregoing, the court does not doubt the
impartiality of the investigator Ms S. who performed the
investigation... The statements by the police officers, the emergency
doctors and staff of the temporary detention unit of the
Chernoyarskiy District Police Department, as well as by the detainees
Mr S. and Mr I., do not contradict each other and draw a full picture
of the events leading to the self-infliction of the injuries by [the
applicant]...”
On
2 December 2004 the Astrakhan Regional Court quashed the decision of
7 October and remitted the matter for a fresh examination.
On
11 February 2005 the Chernoyarskiy District Court again dismissed the
applicant's complaint about the decision of 15 December 2003. The
relevant part of the decision reads as follows:
“Having examined the arguments of the defence, as
stated in their complaint, having heard the submissions of the
Chernoyarskiy District Prosecutor, and having studied the material in
the case-file, the court draws the following conclusion.
On 6 March 2003 [the applicant] was arrested on
suspicion of having committed a criminal offence, as provided for by
paragraph 2 of Article 105 of the Criminal Code of the Russian
Federation. On 8 March 2003 he wrote a confession statement. The
lawyer in his complaint argues that [the applicant] made this
confession under duress inflicted by the police officers. However,
this fact was not proven by the documents included with the material
of the investigation. Upon the lawyer's request, a forensic medical
examination was ordered; as shown by [the expert] report of 9 March
2003, at the time of his examination, [the applicant] did not have
any injuries... Moreover, that expert examination fully excluded the
possibility of [the applicant's] severe systematic beatings, torture
and psychological pressure by the policemen in order to force him to
confess to the murder of Ms P.
As shown by the material of the investigation examined
by the court, [the applicant] received injuries on 13-14 March 2003;
that is confirmed by the emergency doctor Ms K., the police
officers Mr M., Mr Lu., Mr Sm., and by the forensic medical expert
report of 29 September 2003. The determination of the means of
infliction of injuries lies within the competence of the expert...
The expert report can only be assessed in the course of the
[applicant's] trial. The fact that [the applicant] caused the
injuries to himself on 13-14 March 2003 is confirmed by the
statements of Mr S. and Mr I. who had been detained together with
[the applicant] in cell no. 1 in the temporary detention unit of the
Chernoyarskiy District Police Department; [Mr S. and Mr I.] stated
that [the applicant] had begun hitting his head against a wall
without any apparent reason.
Moreover, the defence did not provide any reason for
inflicting injuries on [the applicant] on 13-14 March 2003, that is
after he had confessed to having murdered Ms P. (the confession
statement was made on 8 March 2003), the defence did not substantiate
what was the aim of torturing [the applicant] in the [later] period.
In such circumstances, the court is of the opinion that
the defence's arguments about the unlawfulness and unreasonableness
of the decision of 15 December 2003 of the assistant prosecutor Ms S.
... were not corroborated and the complaint is to be dismissed.”
B. Detention on remand
1. Detention from April to 6 November 2003
On 23 April 2003 the Chernoyarskiy District Court
refused to release the applicant. While finding that the applicant
had been charged with a particularly serious criminal offence and
that there was a risk of his absconding and perverting the course of
justice, having regard to his previous behaviour, the District Court
also noted that the applicant had to undergo a forensic psychiatric
examination. It thus concluded that he should remain in detention
pending such an examination. During the hearing the applicant's
lawyer argued that the applicant lived in a local village and could
promptly arrive at the prosecutor's office when summoned. He was also
in need of lengthy rehabilitation treatment in a neurosurgery
department. Such treatment was not available in the temporary
detention unit. The prosecutor's office provided the District Court
with assurances that necessary medical assistance, including
assistance by neurosurgeons, was available to the applicant in the
local prison hospital.
On 30 April 2003 the District Court extended the
applicant's detention until 6 June 2003. It held that the applicant
had been charged with a serious criminal offence, had fled the crime
scene and had hidden the crime weapon. The District Court concluded
that the materials presented by the prosecution and the results of
investigative measures sufficiently corroborated the conclusion that
the applicant was liable to abscond, influence witnesses and obstruct
justice. It stressed that the investigating authorities had to
perform a number of investigative actions with which the applicant
could interfere if released. Moreover, the District Court once again
noted that the applicant had to remain in detention pending the
forensic psychiatric examination.
On 3 June, 1 August and 1 September 2003 the
Chernoyarskiy District Court, by decisions similarly worded to the
one issued on 30 April 2003, extended the applicant's detention until
6 August, 6 September and 6 November 2003, respectively. Neither
the applicant nor his lawyer appealed against those detention orders.
2. Examination of an application for release
On 15 October 2003 the Chernoyarskiy District Court
dismissed the applicant's application for release, holding that he
had been charged with a particularly serious criminal offence and was
liable to obstruct justice and influence witnesses. The District
Court also noted that the applicant was undergoing medical treatment
in the Regional prison hospital and investigative actions could not
be performed in his absence.
On
13 November 2003 the Astrakhan Regional Court quashed the decision of
15 October 2003 and remitted the matter for fresh examination. The
Regional Court noted that the District Court had not provided any
reasoning for its findings and had also failed to examine the actual
state of the applicant's health and whether he could be provided with
adequate treatment in detention. It also pointed to the District
Court's failure to address the possibility of the applicant's release
under recognisance offered by local MPs and the Astrakhan Regional
Ombudsman.
On 24 November 2003 the Chernoyarskiy District Court
dismissed the request for release. The relevant part of the decision
reads as follows:
“Taking into consideration copies of the material
in the criminal case file examined at the hearing - records of
investigative actions and decisions of the pre-trial investigation
organs and a court - the court notes that [the applicant] has been
charged with a particularly serious criminal offence, which presents
great public danger; as can be seen from the decision of 11 March
2003, when determining the issue of the preventive measure [to be
imposed on the applicant], the pre-trial investigation bodies had
provided the court with the material from the investigative actions
which contained objective data allowing the conclusion that the
accused, if released, could obstruct justice in the case and
influence witnesses. During the pre-trial investigation in the case
until the present time that information has existed among the
material in the case file. The fact that the decision of 11 March
2003 became final confirms that [the applicant's] family situation,
his place of residence and personal characteristics were taken into
account when determining the possible preventive measure. The court
notes that at the present time the family situation and the personal
characteristics of the accused have not changed. [The applicant's]
illness cannot serve as the reason for his release, under the
provisions of the Code of Criminal Procedure.
Moreover, according to the decision of the Chernoyarskiy
District Court of 31 October 2003 [the applicant's] detention on
remand was extended until 6 December 2003. That decision was
upheld on appeal by the Astrakhan Regional Court on 10 November
2003. Those decisions established that [the applicant's] detention
had been authorised and extended reasonably and in accordance with
the law on criminal procedure ...
The court notes that the fact that the pre-trial
investigation ended and that the applicant started reading the case
file cannot serve as evidence to show that the grounds for [the
applicant's] detention in the present case ceased to exist ...”
On 18 December 2003 the Astrakhan Regional Court
disallowed the applicant's appeal against the decision of 24 November
2003 because the statement of appeal did not satisfy the requirements
of the Code of Criminal Procedure.
3. Extension of the applicant's detention until 6
December 2003 (detention order of 31 October 2003)
On 31 October 2003 the Chernoyarskiy District Court
extended the applicant's detention until 6 December 2003, holding
that the applicant had been charged with an especially serious
criminal offence and that there had been grounds, as confirmed by the
decision of 11 March 2003, to conclude that, if released, he was
liable to obstruct justice and influence witnesses. On 10 November
2003 the Astrakhan Regional Court, endorsing the reasoning of the
District Court, upheld the decision of 31 October 2003.
4. Request for release and the decision of 26 November
2003
On 26 November 2003 the Chernoyarskiy District Court
dismissed the applicant's request for release, relying on similar
reasons as had been invoked in the decision of 24 November 2003. The
District Court also examined the guarantees provided by nine MPs and
the Ombudsman of the Astrakhan Region. Those persons argued that the
applicant had not been convicted or charged before, that he had two
children and two minor grandchildren, that he was the head of a farm,
that he had a permanent place of residence and that he was seriously
ill. The MPs and the Ombudsman guaranteed that the applicant would
not abscond and would actively participate in the pre-trial
investigation and trial. The District Court concluded that the
guarantees could not reduce the risk of the applicant's interfering
with the course of the judicial proceedings by conniving with
witnesses, etc.
That decision was upheld by the Astrakhan Regional
Court, acting on appeal, on 25 December 2003. The Regional Court
reiterated the District Court's reasoning.
5. Extension of detention until 6 January 2004
(detention order of 5 December 2003)
On 5 December 2003 the Chernoyarskiy District Court,
using the same reasoning as in the previous extension orders,
extended the applicant's detention until 6 January 2004. The
detention order was upheld on appeal on 17 December 2003.
6. Decision of 9 January 2004 (detention from 6 January
to 2 March 2004)
The
applicant was committed to stand trial before the Chernoyarskiy
District Court.
On 9 January 2004 the Chernoyarskiy District Court
fixed a preliminary trial hearing and, finding that the circumstances
warranting the applicant's detention had not changed, held that the
applicant should remain in detention.
In
response to the applicant's lawyer's letter enquiring about the
grounds for the applicant's detention from 7 to 9 January 2004, on
21 January 2004 the acting head of the Chernoyarskiy District
Police Department sent a letter informing him that after 6 January
2004 the applicant's detention was classified as “during
judicial proceedings”. A week later the head of the
Chernoyarskiy District temporary detention unit informed the
applicant that since 7 January 2004 he had been detained on the basis
of Article 255 of the Code of Criminal Procedure of the Russian
Federation.
At
the beginning of February 2004 the applicant asked the Chernoyarskiy
District Court to extend the time-limit for lodging an appeal against
the decision of 9 January 2004 because he had not been promptly
served with it. He also sought the quashing of the decision of
9 January 2004 and his release.
On 22 April 2004 the Astrakhan Regional Court examined
the merits of the applicant's appeal statement and upheld the
decision of 9 January 2004. According to the applicant, who supported
his claims with a written statement from his lawyer, Ms V., during
the hearing the lawyer had raised the issue of the applicant's
unlawful detention between 6 and 9 January 2007, pointing to the
lack of any legal order. However, the Regional Court had allegedly
refused to examine the lawyer's argument, concentrating on the
grounds for the applicant's detention after 9 January 2004. The
Government disputed the applicant's assertion, stating that the
argument of the alleged unlawfulness of the detention between 6 and
9 January 2004 had never been raised before the Regional Court.
7. Further detention orders (detention from 2 March to
13 July 2004). The applicant's release on bail
In the meantime, on 9 February 2004, the case was
transferred to the Akhtubinsk Town Court for trial. On 2 March 2004
the Town Court fixed a preliminary hearing for 15 March 2004 and
noted that the applicant should remain in custody.
On 17 March 2004 the Akhtubinsk Town Court dismissed
the request for the applicant's release lodged during the hearing on
that day. The Town Court noted that the applicant had been detained
because he had been charged with a particularly serious criminal
offence. His continued detention was ordered with reference to the
failure of the applicant and his lawyer to study the case file
promptly. The applicant had been charged with the murder of Ms P. and
he could have threatened and influenced the victim's relatives and
witnesses.
On 2 April 2004 the Akhtubinsk Town Court scheduled
the first trial hearing and extended the applicant's detention,
noting that the reasons for the extension were the same as those
listed in the decision of 17 March 2004.
By an order of the acting head of the Akhtubinsk Town
temporary detention unit the applicant was released on 13 July 2004,
as, according to the Government, the maximum six-month period of
detention prescribed by Article 255 of the Russian Code of Criminal
Procedure had expired on that date. On 21 June 2004 the Town Court
ordered that the applicant should pay 30,000 Russian roubles (RUB) in
bail as security for his future attendance in court. The applicant
did not appeal against the decision of 21 June 2004.
8. Return to custody on 8 October 2004. Subsequent
detention orders
In
the trial hearing on 8 October 2004 a witness, Mr G., while
testifying as to the circumstances surrounding the murder of Ms P.,
complained to the Town Court that the applicant accompanied by two
other men, Mr Sh. and Mr D., had arrived at Mr G.'s house and had
invited him to take a ride on a boat. After Mr G. had declined the
invitation, Mr D. had hit Mr G. in the face and had forced him to
board the boat. During the ride, the applicant had urged Mr G. to
change his statements given to the investigating authorities,
threatening him and his wife with murder if Mr G. did not comply. Mr
G. had refused to make false statements and the men had thrown him
out of the boat onto the bank. Mr G. insisted that his ear had been
injured during the fall and had started bleeding. His wife, standing
on the bank, had witnessed the incident. The applicant and the two
men had spent the night in Mr G.'s house. Mr G.'s wife had asked the
men about the incident on the boat but the latter had feigned
surprise in response to the accusation of assaulting Mr G. On the day
following the incident, Mr G. and his wife had lodged a complaint
with a prosecutor's office, seeking institution of criminal
proceedings against the applicant. Ms G. confirmed her husband's
statements in open court.
The
applicant denied the accusations, stating that he had visited Mr G.
a number of times and had spent the night of the alleged incident in
his house. During his stay in the house Mr G., who had been heavily
drunk, had tried to extort money from the applicant, alleging that he
had had valuable information about Ms P.'s murder. However, the
applicant had not believed Mr G. knowing that the latter had had a
tendency to fabricate information in a state of alcoholic
intoxication. The applicant insisted that he had never been informed
about the accusations made by Mr G. although he had frequently met
the latter in the village.
In
response to Mr G.'s testimony, a prosecutor asked the Town Court to
remand the applicant in custody, fearing that the latter could
continue his unlawful behaviour. The applicant's lawyer objected,
arguing that there were no grounds for a change in the preventive
measure. According to the lawyer, Mr G.'s accusations had not been
corroborated by any evidence.
On
8 October 2004 the Akhtubinsk Town Court accepted the prosecutor's
request, holding as follows:
“Having studied the material presented by the
prosecution..., having assessed the statements by witnesses, spouses
Mr and Ms G., who had testified that physical force and threats had
been used against Mr G., the court finds that the presented evidence
confirms the fact that [the applicant] may obstruct the proceedings
in the criminal case and that that circumstance is the ground for a
change in the preventive measure; at the same time, taking into
account the fact that the criminal offence with which [the applicant]
is charged under Article 105 § 1 of the Russian Criminal Code
belongs to the category of particularly serious offences and relying
on the gravity of the charge, [the preventive measure should be
changed] to detention on remand.”
The
Astraskhan Regional Court examined the applicant's lawyers' appeals
lodged against the decision of 8 October 2003 and on 2 December 2004
confirmed the lawfulness and well-foundedness of the Town Court's
findings. In particular, the Regional Court held:
“In order to substantiate its authorisation of the
change in the preventive measure [imposed on the applicant]... [the
Town] court relied on the [information] pertaining to [the
applicant's] having committed actions which amount to obstruction of
the judicial proceedings in the criminal case.
The above-mentioned conclusions of the [Town] court are
well-founded as they are confirmed by the statements of the
witnesses, Mr and Ms G.”
The
applicant's detention was further extended on 5 January, 8 April
and 8 July 2005. Each time the Akhtubinsk Town Court cited similar
grounds for the extension: the gravity of the charges and the
applicant's liability to obstruct justice by influencing the victims
and witnesses, as established by the decision of 8 October 2003.
The applicant did not appeal against any of the detention orders.
According
to the applicant, on an unspecified date the criminal proceedings
against him on the charge of tampering with witnesses had been
discontinued.
C. Trial and appeal proceedings on the charges of
murder and weapon possession
On
29 August 2005 the Akhtubinsk Town Court found the applicant guilty
of murder and unlawful possession of a weapon and sentenced him to
nine years and six months' imprisonment. It appears that the
conviction was based, primarily, on statements by a number of
witnesses, including Mr and Ms G., whom the applicant knew well. On
22 December 2005 the Astrakhan Regional Court upheld the judgment on
appeal. The applicant was served with a copy of the appeal judgment
in February 2006.
II. RELEVANT DOMESTIC LAW
A. Investigation into criminal offences
The Code of Criminal Procedure of the Russian
Federation (in force since 1 July 2002, “the CCrP”)
establishes that a criminal investigation can be initiated by an
investigator or a prosecutor on a complaint by an individual or on
the investigative authorities' own initiative, where there are
reasons to believe that a crime has been committed (Articles 146 and
147). A prosecutor is responsible for overall supervision of the
investigation (Article 37). He can order specific investigative
actions, transfer the case from one investigator to another or order
an additional investigation. If there are no grounds to initiate a
criminal investigation, the prosecutor or investigator issues a
reasoned decision to that effect which has to be notified to the
interested party. The decision is amenable to appeal to a
higher-ranking prosecutor or to a court of general jurisdiction
within a procedure established by Article 125 of the CCrP (Article
148). Article 125 of the CCrP provides for judicial review of
decisions by investigators and prosecutors that might infringe the
constitutional rights of participants in proceedings or prevent
access to a court.
B. Detention matters
Until
1 July 2002 matters of criminal law were governed by the Code of
Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (Law of 27 October 1960, “the old CCrP”). From 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
1. Preventive measures
“Preventive measures” include an
undertaking not to leave a town or region, a personal guarantee, bail
and remand in custody (Article 98 of the new CCrP).
2. Authorities ordering detention
The Russian Constitution of 12 December 1993 provides
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
The
new CCrP requires a judicial decision by a district or town court on
a reasoned request by a prosecutor, supported by appropriate evidence
(Article 108 §§ 1, 3-6).
3. Grounds for remand in custody
When
deciding whether to remand an accused in custody, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that he or she would abscond during the
investigation or trial or obstruct the establishment of the truth or
reoffend (Article 97 § 1 of the new CCrP). It must also take
into account the gravity of the charge, information on the accused's
character, his or her profession, age, state of health, family status
and other circumstances (Article 99 of the new CCrP). A defendant
should not be remanded in custody if a less severe preventive measure
is available.
4. Time-limits for detention
(a) Two types of remand in custody
The
Code makes a distinction between two types of remand in custody: the
first being “during investigation”, that is, while a
competent agency – the police or a prosecutor's office –
is investigating the case, and the second being “before the
court” (or “during trial proceedings”), at the
judicial stage. Although there is no difference in practice between
them (the detainee is held in the same detention facility), the
calculation of the time-limits is different.
(b) Time-limits for detention “during
investigation”
After arrest the suspect is remanded in custody
“during investigation”. The maximum permitted period of
detention “during investigation” is two months but this
can be extended for up to eighteen months in “exceptional
circumstances”. Extensions are to be authorised by judicial
decisions, taken by courts at ascending levels. No extension of
detention “during investigation” beyond eighteen months
is possible (Article 109 § 4 of the new CCrP).
The
period of detention “during investigation” is calculated
up to the day when the prosecutor sends the case to the trial court
(Article 109 § 9 of the new CCrP).
Access to the material in the file is to be granted no
later than one month before the expiry of the authorised detention
period (Article 109 § 5 of the new CCrP). If the defendant needs
more time to study the case file, a judge, on a request by a
prosecutor, may grant an extension of the detention until such time
as the file has been read in full and the case sent for trial
(Article 109 § 8 (1) of the new CCrP).
(c) Time-limits for detention “before
the court” or “during judicial proceedings”
From
the date the prosecutor refers the case to the trial court, the
defendant's detention is classified as “before the court”
(or “during judicial proceedings”).
The new CCrP provides that the term of detention
“during judicial proceedings” is calculated from the date
the court received the file up to the date on which the judgment is
given. The period of detention “during judicial proceedings”
may not normally exceed six months, but if the case concerns serious
or particularly serious criminal offences, the trial court may
approve one or more extensions of no longer than three months each
(Article 255 §§ 2 and 3).
5. Time-limits for trial proceedings
The new CCrP empowers the judge, within fourteen days
of receipt of the case file, (1) to refer the case to a competent
court; (2) to fix a date for a preliminary hearing; or (3) to fix a
trial date (Article 227). In the latter case, the trial proceedings
must begin no later than fourteen days after the judge has fixed the
trial date (Article 233 § 1 of the new CCrP). There are no
restrictions on fixing the date of a preliminary hearing.
The
duration of the entire trial proceedings is not limited in time.
The new CCrP provides that the appeal court must start
the examination of the appeal no later than one month after it is
lodged (Article 374).
C. Case-law of the Constitutional Court
On 22 March 2005 the Constitutional Court examined an
application by Mr Biryucheko and Others, who had submitted, in
particular, that the practice of holding a defendant in custody
without any judicial decision on the basis of the fact that the
criminal case against him had been referred to the court competent to
deal with the case was incompatible with the constitutional guarantee
against arbitrary detention. The Court found that the provisions of
the Code challenged by the claimants complied with the Constitution
of the Russian Federation. However, their practical interpretation by
the courts might have contradicted their constitutional meaning. In
part 2.2 of the ruling the Constitutional Court reiterated the
principles established by the European Court of Human Rights in its
case-law:
“A practice of keeping a person in detention
without a specific legal basis, but because of a lack of clear rules
governing the detainee's situation, with the result that a person may
be deprived of his liberty for an unlimited period without judicial
authorisation, is incompatible with the principles of legal
certainty and protection from arbitrariness. The detention of a
person for several months on the sole ground that the case has been
transmitted to the court cannot be considered 'lawful' within the
meaning of Article 5 § 1 of the Convention and is in itself
incompatible with the principle of legal certainty, which is one of
the common threads of the rule of law (see Baranowski v. Poland,
no. 28358/95, §§ 54-57, ECHR 2000-III; and Ječius
v. Lithuania, no. 34578/97, §§ 62 and 63,
ECHR 2000-IX).”
In
part 3.2. of the ruling the Constitutional Court analysed and
interpreted the domestic provisions in the light of the above
principles:
“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 to 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 preventive measure applied at
previous stages.
Therefore, when the case is transmitted by the
prosecution to the trial court, the preventive measure applied at the
pre-trial stage ... may continue to apply until the expiry of the
term for which it has been set by the relevant 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 preventive measure 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 transmission of the case to the court, only until the end of the
term for which the preventive measure 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 the further
detention on remand of the accused]. 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
Procedure, [must] ask the court to extend the period of detention.”
THE LAW
I. PRELIMINARY CONSIDERATIONS
The
Court observes at the outset that in his application lodged with the
Court on 19 April 2004 the applicant complained, inter alia,
about the ill-treatment to which he had allegedly been subjected by
police officers during his detention in the Chernoyarskiy District
Police Department from 6 to 14 March 2003 and the authorities'
failure to investigate effectively his complaints about the events in
question. In his observations, lodged with the Court in July 2007,
the applicant, while maintaining his ill-treatment complaints,
adduced an alternative version of events. In particular, relying on
the Court's findings in the case of Keenan v. the United Kingdom
(no. 27229/95, ECHR 2001 III), he complained that the
Russian authorities had failed to safeguard his health in a situation
where they had been aware that he had tried to injure himself. The
applicant insisted that “no measures [had been] taken to secure
him from the repeated attempts to injure [himself]”.
In
this connection the Court reiterates that the institutions set up
under the Convention have jurisdiction to review, in the light of the
entirety of the Convention's requirements, the circumstances
complained of by an applicant. In the performance of their task, the
Convention institutions are free to attribute to the facts of the
case, as established on the evidence before them, a characterisation
in law different from that given by the applicant or, if need be, to
view the facts in a different manner. Furthermore, they have to take
into account not only the original application but also the
additional documents intended to complete the latter by eliminating
initial omissions or obscurities (see Ringeisen v. Austria,
16 July 1971, § 98, Series A no. 13, as compared with §
79 and §§ 96-97 of that judgment).
Turning
to the present case, the Court observes that the new complaint
pertaining to the events in March 2003 was submitted after the notice
of the initial application had been given to the Government on
21 November 2006. In the Court's view, the new complaint raised
under Article 3 of the Convention is not an elaboration of his
original complaints lodged with the Court more than two years
earlier, on which the parties have already commented. The Court
therefore decides not to examine the new complaint within the
framework of the present proceedings (see Nuray Şen v. Turkey
(no. 2) judgment of 30 March 2004, no. 25354/94, § 200;
Melnik v. Ukraine, no. 72286/01, §§ 61-63, 28
March 2006; and Kravchenko v. Russia, no.
34615/02, §§ 26-28, 2 April 2009).
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that during his detention in the Chernoyarskiy
District Police Department between 6 and 14 March 2003 the police had
subjected him to treatment incompatible with Article 3 of the
Convention and that the authorities had not carried out an effective
investigation into the incident. The Court will examine this
complaint from the standpoint of the State's obligations under
Article 3, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Submissions by the parties
The
Government, relying on the findings made by the Russian prosecution
authorities in the course of the investigation into the applicant's
allegations of ill-treatment, disputed the applicant's version of
events, arguing that the injuries had been the result of his own
actions when he had repeatedly hit his head against the wall and
metal bars and the police officers had tried to put an end to his
unruly conduct. The Government further insisted that the prosecution
authorities and domestic courts had carried out a complete and
thorough investigation into the applicant's allegations, finding no
criminal case to be answered.
The
applicant, relying on statements by various individuals, argued that
there was a widespread practice of intimidation and torture at the
Chernoyarskiy District Police Department. According to the applicant,
police officers frequently resorted to violence, as in his case, to
extract confessions from arrestees. He further supported his
allegations of ill-treatment with a reference to the statements by
his brother who had seen him on 14 March 2003 before his transfer to
the hospital. The applicant attributed particular weight to the fact
that his brother, being a doctor, had the necessary specialist
knowledge to assess the cause of his injuries and their severity.
Relying on his brother's expert opinion, the applicant argued that he
could not have sustained his injuries in a cell as a result of merely
hitting his head or hurling himself against metal bars.
B. The Court's assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) General principles
(i) As to the scope of Article 3
As
the Court has stated on many occasions, Article 3 enshrines one of
the most fundamental values of democratic societies. Even in the most
difficult circumstances, such as the fight against terrorism and
organised crime, the Convention prohibits in absolute terms torture
and inhuman or degrading treatment or punishment, irrespective of the
victim's conduct (see Labita v. Italy [GC], no. 26772/95,
§ 119, ECHR 2000 IV, and Chahal v. the United
Kingdom, 15 November 1996, § 79, Reports of Judgments and
Decisions 1996-V). Article 3 makes no provision for
exceptions and no derogation from it is permissible under Article 15
§ 2 of the Convention even in the event of a public emergency
threatening the life of the nation (see Selmouni v. France
[GC], no. 25803/94, § 95, ECHR 1999-V, and Assenov and
Others v. Bulgaria, 28 October 1998, § 93,
Reports 1998-VIII).
The
Court has consistently stressed that the suffering and humiliation
involved must in any event go beyond that inevitable element of
suffering or humiliation connected with a given form of legitimate
treatment or punishment. Measures depriving a person of his liberty
may often involve such an element. In accordance with Article 3 of
the Convention the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudla
v. Poland [GC], no. 30210/96, §§
92-94, ECHR 2000-XI).
In
the context of detainees, the Court has emphasised that persons in
custody are in a vulnerable position and that the authorities are
under a duty to protect their physical well-being (see Tarariyeva
v. Russia, no. 4353/03, § 73,
ECHR 2006 ... (extracts); Sarban
v. Moldova, no. 3456/05, § 77,
4 October 2005; and Mouisel v.
France, no. 67263/01, § 40,
ECHR 2002 IX). In respect of a person deprived of his liberty,
any recourse to physical force which has not been made strictly
necessary by his own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 of the
Convention (see Sheydayev
v. Russia, no. 65859/01, § 59,
7 December 2006; Ribitsch v. Austria,
4 December 1995, § 38, Series A no. 336; and
Krastanov v. Bulgaria, no. 50222/99, § 53,
30 September 2004).
(ii) As to the establishment of the facts
The
Court reiterates that allegations of ill-treatment must be supported
by appropriate evidence. In assessing evidence, the Court has
generally applied the standard of proof “beyond reasonable
doubt” (see Ireland v. the United Kingdom, 18 January
1978, § 161, Series A no. 25). However, such proof may follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact. Where the
events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities, as in the case of persons within their
control in custody, strong presumptions of fact will arise in respect
of injuries occurring during such detention. Indeed, the burden of
proof may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII).
Where
domestic proceedings have taken place, it is not the Court's task to
substitute its own assessment of the facts for that of the domestic
courts and, as a general rule, it is for those courts to assess the
evidence before them (see Klaas v. Germany, 22 September 1993,
§ 29, Series A no. 269). Although the Court is not
bound by the findings of domestic courts, in normal circumstances it
requires cogent elements to lead it to depart from the findings of
fact reached by those courts (see Matko v. Slovenia,
no. 43393/98, § 100, 2 November 2006). Where
allegations are made under Article 3 of the Convention, however, the
Court must apply a particularly thorough scrutiny (see, mutatis
mutandis, Ribitsch, cited above, § 32).
(b) Application of the above principles in
the present case
(i) Establishment of facts and
application of the rule on the minimum level of severity
Having
examined the parties' submissions and all the material presented by
them, the Court finds it established that on 6 March 2003 the
applicant was arrested and taken to the Chernoyarskiy District Police
Department where he was kept in the detention unit until his transfer
to the Chernoyarskiy District Central Hospital on 14 March 2003. On 9
March 2003, in response to the applicant's lawyer's complaint to the
prosecution authorities alleging ill-treatment in the police
department between 6 and 8 March 2003, a medical expert examined
the applicant and recorded no injuries on his body (see paragraph 33
above). In the evening of the same day an ambulance was called to the
applicant, who complained of a severe headache. An emergency doctor
who attended to the applicant did not discover any injury on his head
or body (see paragraphs 12 and 33 above).
The
applicant, on being visited again by an emergency doctor in the
morning of 12 March 2003, was diagnosed with a neurasthenia syndrome
and hypertension. Once again the doctor did not record any injuries
(see paragraphs 12 and 33 above). In the late evening of 12 March
2003 emergency doctors responded to another call from the police
department. On their arrival at the detention unit they were asked to
assist the applicant. The latter, however, refused medical
examination and assistance and an emergency doctor made an entry to
that effect in the registration log. The emergency doctor who had
seen the applicant did not notice any injury on his head (see
paragraphs 12, 20 and 23 above).
On
the following morning an officer on duty again called an ambulance
alleging that the applicant had hit his head (see paragraph 15
above). An emergency doctor recorded three parallel injuries in the
fibrous part of the applicant's head (see paragraph 20 above). She
also noted that the applicant was extremely nervous and agitated,
experiencing a fit of hysteria. On 14 March 2003 the applicant, in a
critical condition, was transferred to the hospital. On the following
day, being in a state of coma, he was admitted to the resuscitation
unit of the neurosurgery department in Astrakhan Regional Hospital,
where he remained until 19 April 2003. The applicant was diagnosed
with a brain injury of medium severity and a subarachnoid haematoma.
The hospital record also indicated that he had a bruised right
forearm and left shoulder and a haematoma on the chest (see paragraph
16 above).
The
Court takes note of the applicant's argument that the medical expert
who had examined him in the presence of the police officers on
9 March 2003 had allegedly refused to record his injuries and
that the emergency doctor, Mr B., who had seen him on 12 March 2003,
had not recorded an injury on his head (see paragraphs 12 and 33
above). In this respect the Court does not lose sight of that fact
which, at least partly, supports the applicant's assertion. In
particular, the Court finds it peculiar that the emergency doctor, Mr
B., did not notice an injury on the applicant's head although the two
inmates confirmed that the applicant had broken the skin on the head
and that stains of blood, which most probably belonged to the
applicant, were discovered in the cell during the examination on
15 March 2003 (see paragraphs 18, 20 and 23 above). At the same
time the Court does not need to establish the veracity of the medical
records issued before the applicant's admission to the hospital on 14
March 2003. The parties did not dispute the accuracy of the medical
history drawn up in the hospital and the Court therefore finds it
established that on his admission to the hospital the applicant had a
severe head injury and haematomas on the right forearm, left shoulder
and chest.
In
this connection, the Court reiterates that ill-treatment must attain
a minimum level of severity if it is to fall within the scope of
Article 3. The assessment of this minimum is relative: it
depends on all the circumstances of the case, such as the duration of
the treatment, its physical and/or mental effects and, in some cases,
the sex, age and state of health of the victim (see Assenov and
Others v. Bulgaria, 28 October 1998, § 94, Reports
1998 VIII). The Court considers that the seriousness of the
traumas and the degree of bruising found by the doctors who examined
the applicant indicate that the latter's injuries, whether
self-inflicted or caused by the police, were sufficiently serious to
amount to ill-treatment within the scope of Article 3 (see, for
example, A. v. the United Kingdom, 23 September 1998, §
21, Reports 1998 VI, and Ribitsch, cited above, §§
13 and 39). It remains to be considered whether the State should
be held responsible under Article 3 in respect of these injuries.
(ii) Alleged ill-treatment by the police
In
the first place, the Court observes that the Government did not claim
that the injuries sustained by the applicant could have dated from a
period prior to his being arrested. In response to the findings in
the medical reports, the Government put forward one version of events
which could have led to the applicant sustaining his injuries. In
particular, relying on the prosecution authorities' findings and the
expert opinion of 29 September 2003, the Government argued that in
the evening of 12 March 2003 the applicant had started hitting his
head against a wall. Following his fellow inmates' complaints about
his behaviour and on an order from the officer on duty, the applicant
had been transferred to a cell for administrative arrestees where he
could be closely monitored by warders. In the morning of 13 March
2003, during a change of duty shifts, he had repeatedly hit his head
against the metal bars of the cell door. The police officers had
intervened to prevent the applicant from further injuring himself.
While one of the police officers had stuck his arms through the metal
bars in an attempt to cover the applicant's head, the other two had
opened the door, entered the cell and tried to restrain him. The
latter had actively resisted the police officers, trying to hurl
himself against the metal bars. He had been subdued and placed on a
bunk. A pillow had been placed under his head and he had been covered
by soft items. According to the Government, the force applied by the
police officers did not exceed what was reasonable and necessary in
the circumstances of the case.
The
applicant provided a completely different version of events, arguing
that he had been repeatedly and severely beaten by the police
officers between 6 and 14 March 2003. The Court cannot overlook the
inconsistencies that abounded in the various accounts of the events
which the applicant gave in his submissions to the Court and
complaints to domestic authorities, as well as his statements made to
his brother on 14 March 2003. For instance, during his
conversation with his brother on 14 March 2003 the applicant
complained that his head injury resulted from the police officers'
hitting him a number of times with a small plastic bottle filled with
water (see paragraph 16 above). However, when questioned by the
assistant prosecutor, the applicant asserted that he had sustained
the head injury when the police officers had lifted him up and had
thrown him against the metal bars (see paragraph 33 above).
Furthermore, at no point in the proceedings before the Court did the
applicant give a detailed account of the events, recounting his side
of the story day by day. In his application to the Court the
applicant merely complained about the beatings in the police
department from 6 to 8 March 2003, leading to his confession to the
murder of Ms P., and indicated that on 14 March 2003 he had been
admitted to a hospital in view of his head trauma. Lastly, the Court
notes, in connection with the applicant's inconsistencies, that his
observations submitted with the Court in July 2007 he presented a
new, all together different, version of events that negated his
initial complaints of ill treatment by the police.
Having
regard to the contradictory and confusing submissions made by the
applicant, the Court further observes that the evidence collected in
the course of the investigation into the applicant's allegations of
ill-treatment and submitted to the Court appears to support the
Government's version of events. The Court reiterates that on the
applicant's admission to the hospital on 14 March 2003 a number of
injuries were discovered on his body in addition to the head injury.
As regards the head injury, the Court cannot overlook the findings of
the medical expert that this had been self-inflicted and not the
result of any “external action” (see paragraph 26 above).
In this connection, the Court attributes particular weight to the
fact that the applicant did not challenge the impartiality and
competence of the medical expert who had been entrusted with the duty
of performing the examination. The expert's findings are also
supported by the statements of the applicant's fellow inmates, who
claimed that they had not seen the police officers hitting the
applicant and insisted that the latter had repeatedly hit his head
against the wall. The veracity of those statements was also not
contested by the applicant. The Court's conclusion that the
Government's version of events is the more plausible one is further
strengthened by the findings made during the crime-scene examination
performed on 15 March 2003. The Court is mindful of the fact that
during the examination of the cells bloodstains were discovered on
the wall near the bunk in cell no. 1 and on the metal bars and the
cell door in the cell for administrative detainees (see paragraph 18
above). That discovery sits ill with the applicant's versions of
events, namely, that he had either been hit with a plastic bottle or
lifted up and thrown against the wall. It rather supports the
Government's account, which is that the applicant, while lying on the
bunk, had hit his head against the wall and that later on, while
being detained in the cell for administrative detainees, had grabbed
the metal bars and repeatedly hit his head against them.
As
to the other injuries discovered on the applicant's body during the
examination at the neurosurgery department of Astrakhan Regional
Hospital, the Court is of the view that they are consistent with a
minor physical confrontation, which, according to the Government,
occurred between the applicant and the police officers in their
attempt to restrain him. The Court also does not lose sight of the
fact that some of those injuries could have been self-inflicted while
the applicant was hurling himself against the metal bars. This
conclusion is partly supported by the findings of the medical expert
in his opinion of 29 September 2003 (see paragraph 26 above).
In
such circumstances the Court does not find it established that the
applicant was subjected to treatment contrary to Article 3 of the
Convention or that the authorities had recourse to physical force
which had not been rendered strictly necessary by the applicant's own
behaviour. Accordingly, it finds no violation of Article 3 of the
Convention on account of the applicant's allegations of ill-treatment
by the police.
(iii) Alleged inadequacy of the
investigation
The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated in breach of
Article 3, that provision, read in conjunction with the State's
general duty under Article 1 of the Convention to “secure
to everyone within their jurisdiction the rights and freedoms defined
in ... [the] Convention”, requires by implication that there
should be an effective official investigation. An obligation to
investigate “is not an obligation of result, but of means”:
not every investigation should necessarily be successful or come to a
conclusion which coincides with the claimant's account of events;
however, it should in principle be capable of leading to the
establishment of the facts of the case and, if the allegations prove
to be true, to the identification and punishment of those
responsible. Thus, the investigation of serious allegations of
ill-treatment must be thorough. That means that the authorities must
always make a serious attempt to find out what happened and should
not rely on hasty or ill-founded conclusions to close their
investigation or as the basis of their decisions. They must take all
reasonable steps available to them to secure the evidence concerning
the incident, including, inter alia, eyewitness testimony,
forensic evidence, and so on. Any deficiency in the investigation
which undermines its ability to establish the cause of injuries or
the identity of the persons responsible will risk falling foul of
this standard (see, among many authorities, Mikheyev, cited
above, § 107 et seq., and Assenov and Others v.
Bulgaria, cited above, § 102 et seq.).
Turning
to the circumstances of the present case, the Court considers that
the medical evidence, the applicant's allegations of serious
ill-treatment, and the fact that the applicant was detained for
several days in the detention unit of the police department, together
raise a reasonable suspicion that these injuries may have been caused
by the police. The applicant's complaint in this regard is therefore
“arguable”. The authorities thus had an obligation to
carry out an effective investigation into the circumstances in which
the applicant sustained his injuries (see Krastanov v. Bulgaria,
no. 50222/99, § 58, 30 September 2004).
In
this connection, the Court notes that the prosecution authorities,
who were made aware of the applicant's beating, carried out a
preliminary investigation which did not result in criminal
prosecution. The applicant's ill-treatment complaints were also a
subject of the examination by the domestic courts at the two levels
of jurisdiction. In the Court's opinion, the issue is consequently
not so much whether there was an investigation, since the parties did
not dispute that there was one, but whether it was conducted
diligently, whether the authorities were determined to identify and
prosecute those responsible and, accordingly, whether the
investigation was “effective”.
The Court will therefore first assess the promptness
of the prosecutor's investigation, viewed as a gauge of the
authorities' determination to identify and, if need be, prosecute
those responsible for the applicant's ill-treatment (see Selmouni
v. France [GC], no. 25803/94, §§ 78 and 79, ECHR
1999-V). In the present case the applicant's lawyer complained of
ill-treatment to the prosecution authorities on 8 March 2003 (see
paragraph 19 above). The Court is mindful of the fact that the
prosecutor's office opened its investigation immediately after being
notified of the alleged beatings. On 9 March 2003 the applicant
was subjected to a medical examination authorised by the
investigating authorities. Further steps were promptly taken in the
aftermath of the applicant's admission to the hospital. In
particular, on 15 March 2003, the day following the applicant's
hospitalisation, the investigator, assisted by the expert
criminologist and two attesting witnesses, examined the cells where
the applicant had been detained and drew up a detailed report,
documenting the evidence collected. In the following few days the
authorities took significant investigative measures, including
questioning police officers, fellow inmates of the applicant and
emergency doctors and obtaining an expert opinion. The Court does not
find the fact that the three investigator's decisions were annulled
by a higher-ranking prosecutor or court due to certain procedural
defects to be evidence of the inefficiency of the investigation,
since from the materials in the case it follows that the
investigating authorities made diligent efforts to establish the
circumstances of the events and to reconcile conflicting versions of
events. In particular, they persistently tried to identify and
interview additional witnesses who could have shed light on the
events in question. They also further questioned the known witnesses
in order to eliminate or explain the discrepancies which had arisen
in their previous statements. The Court is also mindful of the fact
that the authorities' task was significantly complicated by the
applicant's confusing complaints and inconsistent description of the
events. In this connection the Court observes that the fact that the
investigators had heard the applicant in person with a certain delay
did not affect the efficiency of the investigation as the applicant's
testimony had not clarified the situation and had not divulged any
evidence which could have assisted the authorities in establishing
the truth. In addition, the Court does not overlook the fact that the
applicant did not complain that he had not been duly informed
of the progress of the investigation.
Further assessing the course of
the investigation, the Court observes a delay in the prosecution's
decision to authorise a forensic medical expert examination of the
applicant (see paragraph 26 above). While reiterating that
proper medical examinations are an essential safeguard against
ill-treatment and regretting that such a delay occurred in the
present case, the Court is not convinced that, in the circumstances
of the instant case, in particular in view of the applicant's
admission to the hospital, where his injuries were properly recorded,
and the conclusive findings of the medical expert, a delay in
requesting an expert opinion led to a loss of opportunities for the
collection of evidence and prevented the inquiry from establishing
the principal facts of the case. The Court is also of the opinion
that from the start of the investigation the authorities thoroughly
evaluated medical evidence before them, attempting to draw
conclusions from it, without accepting too readily the police
officers' version of events. The Court does not therefore find it
established that the investigating authorities failed to look for
corroborating evidence or exhibited a deferential attitude to the
police officers. The Court also finds that the authorities may
be regarded as having acted with sufficient promptness and having
proceeded with reasonable expedition.
Having
regard to its findings in paragraphs 106 and 107 above, the Court
considers that the domestic investigation was effective for the
purposes of Article 3 of the Convention. There has accordingly been
no violation of the procedural obligation of Article 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained under Article 5 § 1 (c) that his arrest on
6 March 2003, the subsequent detention order of 11 March 2003,
the orders issued between April and December 2003 and his detention
between 6 and 9 January 2004 had been unlawful. The relevant
parts of Article 5 provide:
“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 argued that the applicant's detention
had been lawful, complying with the requirements of Article 5 §
1 (c) of the Convention. They further submitted that the applicant
had only appealed against the detention orders of 31 October and 5
December 2003. The Government stressed that after the investigating
authorities had sent the case file to the Chernoyarskiy District
Court for trial, the applicant's detention had been governed by
paragraph 2 of Article 255 of the Russian Code of Criminal Procedure.
The Government, citing the information provided by the office of the
Prosecutor General of the Russian Federation, argued that it had been
a “well-established law-enforcement practice” of the
Russian courts to interpret and apply Article 255 of the Russian Code
of Criminal Procedure as had been done in the applicant's case. The
Government noted that at that time the Russian courts had considered
that Article 255 of the new CCrP had not imposed an obligation on a
trial court to issue an order authorising a defendant's detention
within six months after the transfer of a case file from the
investigating authorities to the trial court. During that time, while
awaiting trial, the defendant had been considered to be detained on
the basis of the legal provision in question. At the same time the
Government stressed that despite the absence of an obligation to
authorise a further extension of the applicant's detention, on 9
January 2004 the Chernoyarskiy District Court and then, on 2 March
2004, the Aktyubinsk Town Court had issued orders extending his
detention.
In the alternative, the Government, relying on the
information provided by the Prosecutor General's office, submitted
that on 22 March 2005 the Russian Constitutional Court had found that
the practice of holding individuals in custody, without any legal
order, on the mere ground that a criminal case against them had been
referred for trial was contrary to the requirements of Article 5 §
1 of the Convention. The Government, however, observed that even if
the applicant's detention from 6 to 9 January 2004 had been arbitrary
and, thus, in violation of Article 5 § 1 of the Convention, the
Court was still not entitled to examine the merits of the applicant's
complaint because the applicant had never challenged the grounds for
his detention during that period before any domestic court. The
Government concluded that his complaint should therefore be dismissed
for failure to exhaust domestic remedies.
The
applicant, relying on the Court's findings in the case of Assanidze
v. Georgia ([GC], no. 71503/01, ECHR 2004 II), submitted
that his detention had lacked any basis and had been arbitrary and
unlawful. Relying on a written statement by his lawyer, he further
stressed that he had challenged the grounds for his detention from 6
to 9 January 2004 before the Astrakhan Regional Court, but that his
complaints had gone unanswered.
A. The Court's assessment
1. Admissibility
(a) Six-month issue
The Court observes at the outset that the applicant's
complaint only refers to particular detention orders issued in 2003
and the period of his detention from 6 to 9 January 2004. The Court
further observes that a part of the applicant's complaint refers to a
period of pre-trial detention which ended more than six months before
he lodged the application with the Court on 19 April 2004. The most
recent period of detention which the Court may examine commenced on
6 November 2003 when the three-month period of detention covered
by the order of 1 September 2003 expired (see paragraph 40 above). On
31 October 2003 the Chernoyarskiy District Court issued the
subsequent decision, meant to cover the period of the applicant's
detention for an additional month, from 6 November to 6 December 2003
(see paragraph 45 above). The final decision concerning the
lawfulness of that order was given on 10 November 2003, that is,
within the six months preceding the lodging of the application (see
paragraph 45 above). The Court also notes, and the parties did not
dispute the fact, that the decision of 15 October 2003, which was
quashed on appeal on 13 November 2003, could not be construed as a
formal order authorising the applicant's continued detention during
the period between 15 October and 6 November 2003 (see Matyush
v. Russia, no. 14850/03, §
63, 9 December 2008; Shukhardin v. Russia,
no. 65734/01, § 81, 28 June 2007; and Melnikova
v. Russia, no. 24552/02, § 61, 21 June
2007). The Court therefore considers that the part of the applicant's
complaints concerning the alleged unlawfulness of his detention
before 6 November 2003 has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention (see Salmanov v. Russia (dec.), no. 3522/04, 19
January 2006; Korchuganova v. Russia, no. 75039/01, § 44,
8 June 2006; Pavlík v. Slovakia, no. 74827/01, § 89,
30 January 2007; and Ignatov v. Russia, no. 27193/02,
§ 71, 24 May 2007).
(b) Exhaustion issue
The
Court further notes the Government's submission that the applicant
had failed to challenge the grounds for his detention after 6 January
2004. The applicant contested that argument, noting that on 22 April
2004 the Astrakhan Regional Court had examined his appeal against the
detention order of 9 January 2004 and had dismissed it, endorsing the
reasons given by the District Court. He further insisted that his
lawyer had asked the Regional Court to examine the grounds for his
detention from 6 to 9 January 2004. However, that request had
been futile.
Turning
to the facts of the case, the Court observes that on 6 January
2004 the detention period authorised by the District Court's order of
5 December 2003 expired (see paragraph 48 above). It was not
until 9 January 2004 that the District Court issued the decision
authorising the applicant's subsequent detention (see paragraph 50
above). The decision of 9 January 2004 was upheld on appeal on 22
April 2004 by the Astrakhan Regional Court (see paragraph 53 above).
The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention obliges those seeking to
bring their case against the State before the Court to use first the
remedies provided by the national legal system. Consequently, States
are dispensed from answering before an international body for their
acts before they have had an opportunity to put matters right through
their own legal system. The rule is based on the assumption,
reflected in Article 13 of the Convention - with which it has close
affinity -, that there is an effective remedy available in respect of
the alleged breach in the domestic system whether or not the
provisions of the Convention are incorporated in national law. In
this way, it is an important aspect of the principle that the
machinery of protection established by the Convention is subsidiary
to the national systems safeguarding human rights (see Handyside
v. the United Kingdom, 7 December 1976, § 48, Series A
no. 24).
Under
Article 35 of the Convention, normally recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of the
remedies in question must be sufficiently certain not only in theory
but also in practice, failing which they will lack the requisite
accessibility and effectiveness (see, inter alia, Vernillo
v. France, 20 February 1991, § 27, Series A no. 198, and
Johnston and Others v. Ireland, 18 December 1986, § 22,
Series A no. 112). Article 35 also requires that the complaints made
before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law and, further,
that any procedural means that might prevent a breach of the
Convention should have been used (see Cardot v. France,
19 March 1991, § 34, Series A no. 200).
Furthermore,
in the area of the exhaustion of domestic remedies, there is a
distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant's
complaints and offered reasonable prospects of success. However, once
this burden of proof has been satisfied it falls to the applicant to
establish that the remedy advanced by the Government had in fact been
used or was for some reason inadequate and ineffective in the
particular circumstances of the case or that there existed special
circumstances absolving him or her from the requirement.
The
Court would emphasise that the application of the rule must make due
allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting
Parties have agreed to set up. Accordingly, it has recognised that
the rule of domestic remedies must be applied with some degree of
flexibility and without excessive formalism (see Cardot, cited
above, § 34). It has further recognised that the rule of
exhaustion is neither absolute nor capable of being applied
automatically; in reviewing whether it has been observed it is
essential to have regard to the particular circumstances of each
individual case (see Van Oosterwijck v. Belgium, 6 November
1980, § 35, Series A no. 40). This means, among other
things, that it must take realistic account not only of the existence
of formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate as well as the personal circumstances of the
applicants (see Akdivar and Others v. Turkey, 16 September
1996, §§ 65-68, Reports 1996 IV).
Turning
to the facts of the present case, the Court
observes that the parties disputed whether the complaint about the
applicant's allegedly unlawful detention from 6 to 9 January 2004 had
been raised before the Astrakhan Regional Court. The Court, however,
does not find it necessary to resolve the difference of opinion
between the applicant and the Government. It reiterates the
Government's argument that the applicant's detention during that
period was governed by Article 255 of the Russian Code of Criminal
Procedure. In the light of the information before it, the Court
observes that Article 255 of the Russian Code of Criminal Procedure
lays down a set of regulations for detention of a defendant after his
case has been referred for trial (see paragraph 76 above). As
indicated in the Government's submission, before the ruling of
22 March 2005 of the Russian Constitutional Court, the Russian
courts interpreted that provision as dispensing them from an
obligation to issue any detention order within six months after the
defendant had been committed to stand trial (see paragraphs 110 and 111
above). The courts' approach was apparently based on the underlying
proposition that Article 255 of the new CCrP had introduced
time-limits for the detention of defendants “during judicial
proceedings” and that, therefore, the judicial authorities were
no longer required to issue any formal order authorising detention
during that maximum six-month period.
121. In
this connection, the Court firstly reiterates its finding made in a
number of cases that where there is a practice of non-observance of
certain Convention provisions, the remedies prescribed will of
necessity be side-stepped or rendered inadequate (see Donnelly
and Others v. the United Kingdom,
no. 5577-5583/72, Commission's report of 5 April 1973, Decisions and
Reports (DR) 16, p. 264). Bearing in mind the Government's argument
that the situation in which the applicant had found himself from 6 to
9 January 2004 derived from the “well-established
law-enforcement practice” of the Russian courts and, having
regard to the subject matter of the applicant's complaint, the Court
finds it questionable whether, in such a situation the applicant
would have been able to argue his case before a court or even state
the cause of his complaint such as to pass the admissibility stage.
The stance of the Russian courts at the material time made it
unreasonable for claimants such as the applicant to expect any form
of redress until a change in the existing interpretation of Article
255 of the Russian Code of Criminal Procedure was introduced by the
Russian Constitutional Court.
Furthermore,
the Court notes that the Government did not indicate any domestic
legal provision which could have allowed an appeal court to examine
the grounds for a defendant's detention in the absence of a formal
detention order issued by a trial court. In other words, the Court
has strong doubts that the applicant would have had a realistic
opportunity to apply effectively to a court. The Court therefore
considers that the remedy invoked by the Government offered no
prospect of success and could be considered theoretical and illusory
rather than adequate and effective in the sense of Article 35 §
1 of the Convention.
It
follows that the applicant cannot be said to have failed to exhaust
domestic remedies in respect of the period of his detention from 6 to
9 January 2004, and that the Government's objection as to the
non-exhaustion of domestic remedies should be dismissed.
(c) Conclusion
The
Court finally observes that, having applied the six-month and
exhaustion rules, it has the competence to examine the applicant's
complaint related to the period of his detention from 6 November 2003
to 9 January 2004. The Court notes that that complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
(a) General principles
The Court reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 essentially refer back to national law and state
the obligation to conform to the substantive and procedural rules
thereof. However, the “lawfulness” of detention under
domestic law is not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1
of the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion.
The
Court must moreover ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied.
It is therefore essential that the conditions for deprivation of
liberty under domestic law be clearly defined and that the law itself
be foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
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 Ječius v. Lithuania, no.
34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) Application of the general principles
to the present case
(i) The applicant's detention from 6
November 2003 to 6 January 2004
The
Court observes that the applicant's detention during the period from
6 November 2003 to 6 January 2004 was authorised by the Chernoyarskiy
District Court on the grounds that the charges against him were
serious and that he was liable to pervert the course of justice (see
paragraphs 45 and 48 above).
The
Court reiterates that the trial court's decision to maintain a
custodial measure would not breach Article 5 § 1 provided that
the trial court had acted within its jurisdiction, had power to make
an appropriate order, and had given reasons for its decision to
maintain the custodial measure, for which it had also set a
time-limit (see Khudoyorov, cited above, §§ 152-153;
Korchuganova v. Russia, no. 75039/01, § 62, 8 June 2006;
and Pshevecherskiy v. Russia, no. 28957/02, §§
41-46, 24 May 2007).
The
District Court acted within its jurisdiction in issuing the detention
orders and there is nothing to suggest that the orders were invalid
or unlawful under domestic law in so far as they authorised the
applicant's detention for the subsequent period. It has not been
claimed that those decisions were otherwise incompatible with the
requirements of Article 5 § 1, the question of the
sufficiency and relevance of the grounds relied on being analysed
below in the context of compliance with Article 5 § 3 of the
Convention.
Accordingly,
the Court finds that there has been no violation of Article 5 §
1 (c) of the Convention on account of the applicant's detention from
6 November 2003 to 6 January 2004.
(ii) The applicant's detention from 6 to 9
January 2004
It was not in dispute between the parties that there
had been no judicial decision authorising the applicant's detention
from 6 to 9 January 2004. The Government argued that at the time when
the applicant's case had been under consideration the domestic courts
had interpreted Article 255 § 2 of the Code of Criminal
Procedure as permitting detention of an accused without a court order
for up to six months from the date of receipt of the case file by a
court. A judicial order had been required only if detention “during
judicial proceedings” exceeded six months.
Firstly,
the Court does not lose sight of the Government's submission that the
Constitutional Court had subsequently condemned that practice as
unconstitutional, finding that it was contrary to Article 5 §
1 of the Convention (see paragraph 80 above). Furthermore, the Court
reiterates that it has already examined an identical situation in the
case of Yudayev v. Russia
(no. 40258/03, §§ 59-61, 15
January 2009), in which the applicant had been kept in custody for
seventeen days in the absence of any judicial order with a mere
reference to Article 255 § 2 of the Russian Code of Criminal
Procedure. In particular, the Court held as follows:
“... for the detention to meet the standard of
'lawfulness', it must have a basis in domestic law. The Government,
however, did not point to any legal provision which permitted a
defendant to continue to be held in custody once the authorised
detention period had expired. The Russian Constitution and the rules
of criminal procedure vested the power to order or prolong detention
on remand in the courts. No exceptions to that rule were permitted or
provided for. Even though, as indicated by the Government, the
domestic courts interpreted Article 255 § 2 of the Code of
Criminal Procedure as permitting a six-month detention “during
the trial” without a court order, that interpretation was
condemned by the Russian Constitutional Court as incompatible with
the Constitution and Article 5 § 1 of the Convention. As noted
above, in the period from 5 to 22 January 2004 there was no
judicial decision authorising the applicant's detention. In these
circumstances the Court finds that the detention was not 'lawful' for
Convention purposes” (ibid, § 60).
The
Court sees no reason to reach a different conclusion in the present
case. It follows that during the period from 6 to 9 January 2004
there was no “lawful” basis for the applicant's
detention. There has therefore been a violation of Article 5 § 1
of the Convention.
3. Summary of the findings
The
Court has found no violation of Article 5 § 1 (c) of the
Convention on account of the applicant's detention between 6 November
2003 and 6 January 2004.
The
Court has found a violation of Article 5 § 1 (c) of the
Convention on account of the applicant's detention from 6 to 9
January 2004.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his detention had been excessively long.
The Court considers that this complaint falls to be examined under
Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall
be... entitled to trial within a reasonable time or to release
pending trial...”
A. Submissions by the parties
Firstly,
the Government stressed that the applicant had failed to exhaust
domestic remedies available to him as he had not appealed against a
number of the detention orders, including those issued on 5 January,
8 April and 8 July 2005. In the alternative, the Government submitted
that the length of the applicant's detention had not been excessive.
It had been necessitated by the seriousness of the charge against the
applicant and the likelihood that he would try to influence
witnesses. The Government further pointed out that the applicant had
fled the crime scene and that he had hidden the crime weapon. In
their opinion, those two factors served as an additional
justification for the applicant's continued detention. The Government
insisted that the domestic courts' findings had been amply proven by
the applicant's conduct after his release on bail. Two witnesses, Mr
and Ms G., had testified in open court about the applicant's
unsuccessful attempts, through the use of force and threats, to
prompt them to change their statements given to the investigating
authorities.
The
applicant argued that the domestic courts had failed to invoke
relevant and sufficient grounds to justify his prolonged detention.
He disputed the fact that the courts' finding of his liability to
obstruct justice and influence witnesses had been based on any
evidence. The applicant attributed particular weight to the fact that
the criminal proceedings against him on a witness tampering charge
had been dropped owing to a lack of evidence of criminal conduct. He
insisted that the domestic courts had not had regard to his personal
and family situation, his state of health, the nature of his work and
other particular circumstances of his case.
B. The Court's assessment
The
Court notes the Government's argument that by failing to lodge
appeals against the majority of the detention orders the applicant
had denied the domestic authorities an opportunity to consider
whether the extensions of his detention (at least during the periods
before October 2003, between January and July 2004 and after 5
January 2005) were compatible with his Convention right to trial
within a reasonable time or release pending trial. They insisted that
the Court should reject the applicant's complaints in respect of that
period of his pre-trial detention for failure to exhaust available
domestic remedies.
In
this respect the Court considers that it does not have to address the
Government's non-exhaustion argument, because the applicant's
complaint, raised under Article 5 § 3 of the Convention, must,
in any event, be declared inadmissible for the following reasons.
1. General principles
Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty.
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest that might justify, with due
regard to the principle of the presumption of innocence, a departure
from the rule of respect for individual liberty and set them out in
their decisions dismissing the applications for release. It is
essentially on the basis of the reasons given in these decisions and
of the true facts mentioned by the applicant in his appeals that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see
Labita v. Italy [GC], no. 26772/95, § 152, ECHR
2000 IV).
The
arguments for and against release must not be “general and
abstract” (see Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides
for a presumption in respect of factors relevant to the grounds for
continued detention, the existence of the concrete facts outweighing
the rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, no. 33977/96,
§ 84 in fine, 26 July 2001).
The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(Labita, cited above, § 153).
2. Application of the general principles to the present
case
(a) Period to be taken into consideration
The
Court observes that the applicant's detention on remand consisted of
two periods: (a) from his arrest on 6 March 2003 to the release on 13
July 2004 and (b) from 8 October 2004 when he was re-arrested to his
conviction on 29 August 2005. Thus, the total length of the
applicant's pre-trial detention amounted to approximately two years
and three months.
(b) Grounds for continued detention
Turning
to the circumstances of the present case and assessing the grounds
for the applicant's continued detention, the Court notes that the
competent judicial authorities advanced three principal reasons for
not granting the applicant's release, namely that the applicant
remained under a strong suspicion of having committed the crime of
which he was accused, the serious nature of that offence and the fact
that the applicant would be likely to abscond, pervert the course of
justice and influence witnesses if released, given the sentence which
he faced if found guilty as charged, and his behaviour in the
aftermath of the crime and during his release on bail.
The
Court accepts that the reasonable suspicion of the applicant having
committed the offence with which he had been charged, being based on
cogent evidence, persisted throughout the trial leading to his
conviction. It also agrees that the alleged offence was of a
particularly serious nature.
As
regards the danger of the applicant's absconding, the Court notes
that the judicial authorities relied on the likelihood that a severe
sentence might be imposed on the applicant, given the serious nature
of the offences at issue. In this connection, the Court reiterates
that the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending. It acknowledges
that in view of the seriousness of the accusations against the
applicant, the authorities could justifiably have considered that
such an initial risk was established (see Ilijkov v. Bulgaria,
no. 33977/96, §§ 80-81, 26 July 2001). However,
the Court reiterates that the possibility of a severe sentence alone
is not sufficient after a certain lapse of time to justify continued
detention based on the danger of flight (see Wemhoff v. Germany,
27 June 1968, § 14, Series A no. 7, and B.
v. Austria, 28 March 1990, § 44, Series A
no. 175).
In
this context the Court observes that the danger of absconding must be
assessed with reference to a number of other relevant factors. In
particular, regard must be had to the character of the person
involved, his morals, his assets, etc. (see W. v. Switzerland,
26 January 1993, § 33, Series A no. 254 A). Having said
that, the Court would emphasise that there is a general rule that the
domestic courts, in particular the trial court, are better placed to
examine all the circumstances of the case and take all the necessary
decisions, including those in respect of pre-trial detention. The
Court may intervene only in situations where the rights and liberties
guaranteed under the Convention have been infringed (see Bąk
v. Poland, no. 7870/04, § 59, ECHR 2007 II (extracts)).
In the present case the national courts also relied on other
circumstances, including the fact that the applicant had fled the
crime scene and had attempted to hide the crime weapon. While the
Court doubts whether those circumstances, taken on their own, could
have justified the domestic courts' finding about the necessity of
the applicant's continued detention, it is satisfied that the
totality of those factors combined with other relevant grounds could
have provided the domestic courts with an understanding of the
pattern of the applicant's behaviour and the persistence of a risk of
his absconding.
The
Court further accepts that by concealing the evidence, the applicant
attempted to obstruct the investigation. There was a risk that, if
released, he would continue his attempts to interfere with the
proceedings. Therefore, the domestic courts could justifiably
consider it necessary to keep the applicant in custody (compare with
Yudayev, cited above,
§ 70). Moreover, the Court does not lose sight of the
fact that the domestic courts' fear of collusion was amply proven
when the applicant attempted to take advantage of his regained
liberty by harassing and intimidating witnesses to prompt them to
change their statements.
In
this connection, the Court observes that one of the main grounds
invoked by the domestic courts in their justification for the
applicant's detention was the likelihood of his tampering with
witnesses. The Court reiterates that, as regards the risk of pressure
being brought to bear on witnesses, at the initial stages of the
proceedings the judicial authorities appeared to presume that such a
risk existed on the ground that the applicant was closely acquainted
with all the witnesses in his case and that the nature of his ties to
the witnesses facilitated the task of possible connivance with them.
The Court accepts that, in the special circumstances of the case, the
risk stemming from the nature of the applicant's relations with
witnesses actually existed and justified holding him in custody for
the relevant period (compare with Rażniak v. Poland, no.
6767/03, § 31, 7 October 2008, and also see Contrada v.
Italy, 24 August 1998, § 58, Reports 1998 V). In
order to demonstrate that a substantial risk of collusion existed and
continued to exist, the District Court further referred to the scope
of the case and the necessity to perform a number of procedural steps
with which the applicant could have interfered, if released (see
paragraphs 38 and 39 above). The District Court based a secondary
argument on the applicant's behaviour preceding his arrest.
The
events following the applicant's release in July 2004 showed the fact
that the domestic courts' fears about obstruction of the proceedings
were well-founded, since two witnesses complained in open court of
murder threats and violence used by the applicant and his associates
in an attempt to force those witnesses to change their statements.
The Court readily understands that in such circumstances the
authorities considered it necessary to keep the applicant detained in
order to prevent him from disrupting the criminal proceedings. It
reiterates that the fear of reprisal, justifiable in the present
case, can often be enough for intimidated witnesses to withdraw from
the criminal justice process altogether. The Court observes that the
domestic courts carefully balanced the safety of the two witnesses
who had given statements against the applicant, together with the
prospect of other witnesses' willingness to testify, against the
applicant's right to liberty.
The
Court's finding in the previous paragraph is not altered by the fact
that, as indicated in the applicant's submissions, the criminal
proceedings instituted against him on a witness tampering charge did
not result in conviction. In this respect the Court observes that the
domestic courts, while examining the issue of witness tampering and
authorising the applicant's detention, were not required to establish
in a definite manner the existence and nature of the offence in
question since that was the purpose of a separate investigation
initiated by the prosecution authorities. The Court considers that on
the basis of the information in their possession at the time when the
detention orders were issued, the domestic courts could have
reasonably considered that the danger posed by the applicant's
behaviour to the proper administration of justice was real and that
it warranted his detention (see, mutatis mutandis, X. v. the
United Kingdom, no. 8083/77, Commission's report of 13 March
1980, DR 19, p. 223).
Having
regard to the above, the Court considers that the present case is
different from many previous Russian cases where a violation of
Article 5 § 3 was found because the domestic courts had extended
an applicant's detention relying essentially on the gravity of the
charges without addressing specific facts or considering alternative
preventive measures (see, among many others, Belevitskiy v.
Russia, no. 72967/01, §§ 99 et seq., 1 March
2007; Khudobin v. Russia, no. 59696/00, §§ 103
et seq., ECHR 2006-... (extracts); and Mamedova v. Russia,
no. 7064/05, §§ 72 et seq., 1 June 2006). In the
present case, the domestic courts cited specific facts in support of
their conclusion that the applicant might interfere with the
proceedings. They also considered a possibility of applying
alternative measures, such as accepting the guarantees offered by MPs
and an Ombudsman, but found them to be inadequate. The Court
concludes that the applicant's behaviour as described in the
decisions of the domestic courts justified his detention. The
applicant's detention was therefore based on “relevant”
and “sufficient” grounds.
(c) Conduct of the proceedings
It
remains to be ascertained whether the judicial authorities displayed
“special diligence” in the conduct of the proceedings.
The
Court takes the view that the applicant's case was of a certain
complexity, involving a large number of witnesses and examination of
forensic evidence, including a number of expert opinions.
As
to the conduct of the proceedings, the applicant did not argue, and
the Court has no reason to conclude otherwise, that any delay in the
proceedings had been attributable to the investigative authorities or
the courts. In the present case the investigation was completed
within approximately eight months. There is no evidence of any
significant periods of inactivity on the part of the prosecution
authorities. The materials presented by the parties show that within
eight months the prosecution had searched the applicant's house,
obtained several expert opinions, questioned the applicant,
confronted him with witnesses and drawn up the bill of indictment. It
took the applicant several months to study the case file which
delayed the committal of the case for trial through no fault of the
authorities (see paragraph 43 above). While the court does not lose
sight of the fact that it took the trial court approximately a year
and a half to examine the applicant's case, it reiterates that the
right of an accused in detention to have his case examined with
particular expedition must not hinder the efforts of the courts to
carry out their tasks with proper care (see among other authorities,
W. v. Switzerland, 26 January 1993, § 42, Series A no.
254 A). The Court does not observe any delays in the course of
the trial proceedings. Hearings were scheduled and held at regular
intervals. It appears that the trial court took steps to ensure that
the hearings were attended by the parties and other participants to
the proceedings, to avoid any unjustified adjournments. The Court is
of the opinion that the trial proceedings were conducted with due
expedition, having regard to the complexity of the case and the
amount of evidence which needed to be thoroughly examined by the
trial court. The Court considers that the domestic authorities
handled the applicant's case with the requisite diligence.
(d) Overall assessment
Having
regard to the above, the Court concludes that the complaint under
Article 5 § 3 must be rejected as manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant complained that the courts had not examined “speedily”
the applications for release he had lodged before 19 April 2004. In
his observations of 3 July 2007 he further complained that he had not
been provided with an opportunity to present his case effectively in
the proceedings concerning his detention from 6 to 9 January 2004,
and that the domestic courts, while dealing with his appeals against
the detention orders, had not taken into account relevant facts. The
Court considers that the applicant's complaints fall to be examined
under Article 5 § 4 of the Convention. Article 5 § 4
provides:
“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. Submissions by the parties
The
Government submitted that the domestic courts had complied with the
time-limits established by the Russian law of criminal procedure and
thus they had examined the applicant's applications for release
“speedily”.
The
applicant maintained his complaints.
B. The Court's assessment
1. Admissibility
The
Court observes that the applicant's complaints in respect of his
requests for release which were examined by the domestic courts in
the last instance before October 2003 were introduced out of time,
that is more than six months before the applicant lodged his
application with the Court on 19 April 2004, and must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention. The same conclusion applies to the applicant's complaints
raised in his observations of 3 July 2007, as the applicant's
detention on remand ended on 29 August 2005 with the conviction by
the Town Court. The Court will therefore only examine the applicant's
complaints related to the release applications which were determined
in the last instance no earlier than October 2003.
The
Court further notes that the remainder of the complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
2. Merits
(a) General principles
The
Court reiterates that Article 5 § 4, in guaranteeing to persons
arrested or detained a right to take 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. Although it 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 detainees the same guarantees on
appeal as at first instance (see Navarra v. France,
23 November 1993, § 28, Series A no. 273-B,
and Toth v. Austria, 12 December 1991, § 84,
Series A no. 224). The requirement that a decision be given
“speedily” is undeniably one such guarantee; while one
year per level of jurisdiction may be a rough rule of thumb in
Article 6 § 1 cases, Article 5 § 4, concerning issues of
liberty, requires particular expedition (see Hutchison Reid v. the
United Kingdom, no. 50272/99, § 79,
ECHR 2003-IV). In that context, the Court also observes that
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).
(b) Application of the general principles
to the present case
(i) Applications for release lodged in
October and November 2003
The Court notes that it took the domestic courts
sixty-three and twenty-nine days, respectively, to examine the
applicant's requests for release lodged in October and November 2003
(see paragraphs 41-44 and 46-47 above). There is nothing to suggest
that the applicant caused delays in the examination of his release
applications. The Government did not indicate any particular instance
where the applicant might have applied for a stay of the proceedings
in which the lawfulness of his detention was being reviewed or might
have in any other way caused a delay in those proceedings. The Court
therefore finds that these two periods cannot be considered
compatible with the “speediness” requirement of Article 5
§ 4, especially taking into account that their entire duration
was attributable to the authorities (see, for example, Mamedova v.
Russia, no. 7064/05, § 96, 1 June 2006; Khudoyorov
v. Russia, no. 6847/02, §§ 198 and 203; and Rehbock
v. Slovenia, no. 29462/95, §§ 85-86, ECHR
2000-XII, where review proceedings which lasted twenty-three days
were found not to have been “speedy”).
There
has therefore been a violation of Article 5 § 4 of the
Convention.
(ii) Application for release lodged on 17
March 2004
As indicated in the parties' submissions, the applicant's request for
release was received by the Town Court during the hearing on 17 March
2004 (see paragraph 55 above). On the same day the Town Court
dismissed the request. There is no indication in the material that
the applicant appealed against that decision. Accordingly, the
proceedings lasted one day. Their length does not appear excessive.
In
these circumstances, the Court finds that there was no violation of
Article 5 § 4 of the Convention as regards the
“speediness” of the review afforded by the domestic
courts of this application for release.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and
in so far as these complaints fall within the Court's competence, it
finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 20,896.46 euros (EUR) in respect of pecuniary
damage, representing capital losses he had sustained as a result of
the institution of the criminal proceedings against him and his
lengthy detention. He further claimed EUR 100,000 in respect of
non-pecuniary damage.
The
Government submitted that the applicant's claim in respect of
pecuniary damage was manifestly ill-founded and contrary to the
Convention principles and the Court's case-law. They further noted
that the claim for compensation in respect of non-pecuniary damage
was clearly excessive and groundless.
The
Court shares the Government's view that there has been no causal link
between the violations found and the pecuniary damage claimed (see
Stašaitis v. Lithuania, no. 47679/99, § 96, 21
March 2002, and Khudoyorov v. Russia, no. 6847/02, § 221,
ECHR 2005 X (extracts)). Consequently, it finds no reason to
award the applicant any sum under this head.
At
the same time, the Court notes that it has found two violations in
the present case. In these circumstances, the Court considers that
the applicant's suffering and frustration cannot be compensated for
by the mere finding of a violation. Making its assessment on an
equitable basis, the Court awards the applicant EUR 1,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The
applicant also claimed EUR 10.628,79 for the costs and expenses
incurred before the domestic courts, of which EUR 7.902, according to
the applicant, had been paid in legal fees and EUR 2,726.79
represented travel expenses of his lawyers. He further claimed
EUR 3,424.16 and 848.05 British pounds (GBP) in respect of costs
and expenses incurred before the Court, of which EUR 3,300 was for
his legal representation, EUR 124.16 in postal expenses, GBP 587.05
for the assistance by Ms Knights, barrister, and GBP 260.55 for
translation and administrative services. In particular, the
applicant's lawyers from the Human Rights Centre Memorial claimed to
have spent sixty-six hours on the case. They submitted an itemised
schedule of costs and expenses that included the research and
drafting of legal documents submitted to the Court, at a rate of EUR
50 per hour. According to the documents presented, Ms Knights spent 5
hours on the case. Her fee was calculated on the basis of the hourly
rate of GBP 100. The applicant also submitted a detailed calculation
of translation and administrative services and supported his claim of
postal expenses by a copy of an international mail receipt.
The
Government argued that the applicant's claims were excessive and
unreasonable as there was no need to involve several representatives
in the presentation of the applicant's case.
The
Court reiterates that only such costs and expenses as were actually
and necessarily incurred in connection with the violation or
violations found, and are reasonable as to quantum, are recoverable
under Article 41 of the Convention (see, for example, Sahin v.
Germany [GC], no. 30943/96, § 105, ECHR
2003-VIII). As regards the applicant's claim in respect of costs and
expenses incurred before the domestic courts, the Court is mindful of
the fact that the applicant was represented by counsel in the
domestic proceedings, which involved complex issues, inter
alia the complaint about police brutality, and required
qualified legal advice. However, the applicant did not produce any
document justifying his claim of costs and expenses related to the
domestic proceedings (copies of contracts with the lawyers, invoices,
payment certificates, etc.). The Court is unable to determine whether
the expenses claimed by the applicant were, in fact, incurred in the
amount he claimed and it therefore makes no award under this head.
The
Court further observes that the lawyers from the Human Rights Centre
Memorial represented the applicant in the proceedings before the
European Court of Human Rights. It is clear from the length and
detail of the pleadings submitted by the applicant that a great deal
of work was carried out on his behalf. Having regard to the documents
submitted and the rates for the lawyers' work, the Court is satisfied
that these rates are reasonable. However, the
Court considers that a reduction should be applied to the amount
claimed in respect of legal fees on account of the fact that some of
the applicant's complaints were either declared inadmissible or no
violation was found. Having regard to the materials in its
possession, the Court awards the applicant EUR 124.16 for his postal
expenses, EUR 300 in respect of the translation and administrative
fees and EUR 2,000 for the applicant's legal representation before
the Court, together with any tax that may be chargeable to the
applicant.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints alleging the
ill-treatment of the applicant by police officers, the
ineffectiveness of the investigation into the incident, the
unlawfulness of the applicant's detention from 6 November 2003 to 9
January 2004 and the domestic courts' failure to examine speedily his
applications for release between October 2003 and April 2004
admissible and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 3 of the Convention on account of the applicant's allegations
of ill-treatment by the police;
Holds that there has been no violation of
Article 3 of the Convention on account of the authorities' failure to
investigate effectively the applicant's complaint of ill-treatment;
Holds that there has been no violation of
Article 5 § 1 (c) of the Convention on account of the
applicant's detention from 6 November 2003 to 6 January 2004;
Holds that there has been a violation of Article
5 § 1 (c) of the Convention on account of the applicant's
detention from 6 to 9 January 2004;
Holds that there has been a violation of Article
5 § 4 of the Convention on account of the domestic courts'
failure to examine speedily the applicant's applications for release
lodged in October and November 2003;
Holds that there has been no violation of
Article 5 § 4 of the Convention as regards the “speediness”
of the review by the domestic courts of the application for release
lodged on 17 March 2004;
Holds
(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 Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii)
EUR 2,424.16 (two thousand four hundred and twenty-four euros and
sixteen cents) in respect of costs and expenses incurred before the
Court;
(iii)
any tax that may be chargeable to the applicant
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 the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
