(Application no. 15217/07)
12 March 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 Aleksandr Makarov v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 17 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Institution of criminal proceedings and the applicant's arrest
B. The applicant's detention
1. Authorisation of the applicant's detention (decisions of 8 December 2006)
“At the hearing the acting head of the department... of the Tomsk Regional Prosecutor's Office, Ms K., applied for a seventy-two-hour extension to keep [the applicant] in custody pending the submission of additional evidence, namely the suspect's identification documents – a copy of the suspect's passport – in support of the request.
The suspect, [the applicant], disagreed with the request and stated that there were no grounds for extending his detention.
The suspect's lawyers also disagreed with the request and explained that [the applicant] had no intention to abscond, he had a permanent place of residence and his arrest was unlawful, as there were no grounds for his arrest as required by Article 91 of the Code of Criminal Procedure of the Russian Federation. In these circumstances they asked for the request to be dismissed.
Having heard the submissions of the parties to the proceedings and having examined the material in the criminal case file, the court grants the extension...
By virtue of Article 108 § 7 of the Code of Criminal Procedure of the Russian Federation, a court has the right to grant an extension on request. If the court considers that the arrest was lawful and justified, [it] may grant a seventy-two-hour extension from the moment when the court decision has been taken to allow a party to submit additional evidence in support of [the claim] that the application of a measure of restraint such as detention is justified or unjustified.
Having examined the material in the case file, the court finds that [the applicant's] arrest was lawful and justified.
By virtue of Article 91 of the Code of Criminal Procedure of the Russian Federation, an investigating authority, an investigator or a prosecutor has the right to arrest a person suspected of having committed a criminal offence which is punishable by imprisonment, if one of the following conditions is satisfied:
(1) that person has been caught committing a crime or immediately after having committed a crime;
(2) victims or eyewitnesses have identified that person as the perpetrator of a criminal offence; or
(3) obvious traces or signs of a criminal offence have been discovered on that person or his clothes, or with him or in his house.
As follows from the record of [the applicant's] arrest, he was arrested on 6 December 2006 on suspicion of having committed criminal offences under Article 91 § 1 (2) of the Code of Criminal Procedure of the Russian Federation because the victims had identified him as the perpetrator of the offences. There were no violations of criminal procedural law.
On 6 December 2006, at 9.05 a.m., that is before the arrest, criminal proceedings were instituted against the identified person – [the applicant] – on suspicion of offences under Article 33 § 5, Article 163 § 3 (b) and Article 285 § 2 of the Criminal Code of the Russian Federation.
Having regard to the foregoing, the court considers it lawful and justified to grant a seventy-two-hour extension...”
2. Extension of the applicant's detention until 6 May 2007 (detention order of 5 February 2007)
“Thus, according to the available information, [the applicant] has asked his daughter Ms Y. to resign from [her position] in the law-enforcement bodies and to sell quickly the immovable property she owns, including a house..., and has advised her to leave Russia with her children as soon as possible.
At the same time, [the applicant] is taking steps to pervert the course of the investigation using his connections with the authorities in Tomsk and the Tomsk Region. In particular, [the applicant], with the help of his relatives and confidants, has influenced officials of the [Tomsk] Town Council who are acting as witnesses in criminal case no. 2006/4500, including by making threats to use physical force against them and their family members. Moreover, he is actively using negative information damaging to the reputation of senior officials and employees of the Tomsk mayor's office, the Tomsk Regional Administration and members of the Tomsk Town Council.
Furthermore, ... on orders from [the applicant], his confidants and close relatives visited Moscow and had several meetings with high-ranking officials, including those in the Office of the President of the Russian Federation, and with intermediaries who have connections with corrupt officials in law-enforcement bodies who may discontinue the criminal proceedings against him in return for money. As a result of those meetings, presumably, [the applicant's] confidants reached an agreement concerning the provision of consultative, administrative and legal assistance in their efforts to secure [the applicant's] release.
The available information supports the conclusion that, if released, [the applicant] will have real opportunities to obstruct the course of justice.”
“Thus, [the applicant] is currently suspended from his position as mayor of Tomsk; however, by virtue of Article 114 of the Code on Criminal Procedure of the Russian Federation, this measure is temporary and does not entail dismissal from the position or loss of social and employment status and personal authority over certain groups of individuals and officials who may be questioned as witnesses in the course of the criminal proceedings. In particular, [the applicant's] former subordinates may act as witnesses in the criminal investigation.
When on 8 December 2006 the court chose a measure of restraint, [it] noted that there was evidence supporting the conclusion that the defendant might abscond; that evidence did not cease to exist after the examination of the question of the application of the measure of restraint. Thus, [the fact that the applicant has] a permanent place of residence and the family (wife, children, grandchildren) in one town, [and that he does not have] immovable property and bank accounts outside Tomsk cannot serve as an independent ground excluding the possibility of the defendant's absconding or perverting the course of the investigation. [The applicant] can also participate in the election campaign while outside his electoral district.
There is no evidence that the state of [the applicant's] health has deteriorated since he has been in custody. According to the conclusions of the complex forensic medical examination no. 342-Uzh, [the applicant] has several chronic conditions, including...; however, taking into account those diseases, he may be detained on condition that urgent special medical assistance is provided.”
3. Extension of the detention until 6 September 2007 (order of 4 May 2007) and request for a medical examination
4. Extension of the detention until 6 December 2007 (decision of 3 September 2007)
“As it follows from the case file materials, [the applicant] is charged with serious and particularly serious criminal offences and the case is very complex, which is confirmed by the substantial volume of the materials (approximately thirty-five volumes) and the necessity for the defendant and his lawyers to study the file...
It also follows from the case file materials that the measure of restraint was chosen for [the applicant] correctly, in accordance with Article 97 of the Russian Code of Criminal Procedure, which is based on the particular seriousness of the charges, [and] the presence of the possibility for the defendant to use his official powers to prevent the establishment of the truth.
The grounds for the application of such [a measure of restraint] did not cease to exist; [they] did not change and the new grounds, showing that it is necessary to apply another measure of restraint, did not emerge.
Taking into account the materials of the case file and having regard to the official and material status of the defendant, the court has grounds to consider that, if released, [the applicant] as the head of the municipality might apply pressure to the witnesses, and [he] might also escape from the investigating authorities, including by leaving the Russian Federation.
A temporary suspension from the office does not mean the dismissal from the position, the loss of social and official status, [the loss] of personal authority over particular groups of private individuals and officials who may be questioned as witnesses in the case during the pre-trial investigation or in a court.
The [fact] that [the applicant] does not have a travel passport or medical insurance for a foreign State cannot serve as evidence that it is impossible for him to leave the Russian Federation.
[The facts that the applicant] has a permanent place of residence, [and] the family (spouse, children and grandchildren) living within the same town, [that he] does not have immovable property or bank accounts in foreign States cannot on their own serve as an independent ground excluding a possibility of the defendant's absconding the investigation and trial or his liability to pervert the course of the investigation.
According to a medical certificate, [the applicant's] state of health allows his detention in a temporary detention facility.
While extending the detention, the court takes into account the absence of prior convictions, the defendant's state of health, the presence of the permanent places of residence and work, [his] age, however, taking into account the above stated, [the court] does not find any ground permitting a change of the measure of restraint applied to [the applicant].”
5. Extension of detention until 6 March 2008 (detention order of 3 December 2007)
6. Extension of the detention until 6 June 2008 (detention order of 3 March 2008)
“While extending [the applicant's] detention on the grounds prescribed by Article 109 § 7 of the Russian Code of Criminal Procedure, the court also notes that the suspect has been in custody for more than a year.
However, the court, relying on Article 109 § 3 of the Russian Code of Criminal Procedure, considers that the particular complexity of the criminal case, the seriousness of the charges against [the applicant], [his] social and official status, the presence of circumstances which allow to conclude that, if released, [the applicant] is liable to abscond and pervert the course of justice represent the exclusive grounds warranting the extension of [the applicant's] detention for more than twelve months.”
7. Listing of the first trial hearing and extension of the detention until 20 November 2008 (decision of 3 June 2008)
C. Conditions of the applicant's detention
1. Medical assistance
2. Number of inmates per cell, sanitary conditions, facilities and food
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
B. Complaint to a prosecutor
53. Sections 22 and 27 of the Prosecution Authority Act (Federal Law no. 2202-1 of 17 January 1992) establish a list of prosecutors' official powers, including rights to enter premises, to receive and study materials and documents, to summon officials and private individuals for questioning, to examine and review complaints and petitions containing information on alleged violations of individual rights and freedoms, to explain avenues of protection of those rights and freedoms, to review compliance with legal norms, to institute administrative proceedings against officials, to issue warnings about impermissibility of violations and to issue reports pertaining to elimination of the discovered violations.
C. Placement in custody and detention
1. Preventive measures
2. Authorities ordering detention
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
(a) Two types of remand in custody
(b) Time-limits for detention “during investigation”
5. Time-limits for trial proceedings
65. 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.
“b. temporary holding facilities for criminal suspects (IVS)
26. According to the 1996 Regulations establishing the internal rules of Internal Affairs temporary holding facilities for suspects and accused persons, the living space per person should be 4 m². It is also provided in these regulations that detained persons should be supplied with mattresses and bedding, soap, toilet paper, newspapers, games, food, etc. Further, the regulations make provision for outdoor exercise of at least one hour per day.
The actual conditions of detention in the IVS establishments visited in 2001 varied considerably.
45. It should be stressed at the outset that the CPT was pleased to note the progress being made on an issue of great concern for the Russian penitentiary system: overcrowding.
When the CPT first visited the Russian Federation in November 1998, overcrowding was identified as the most important and urgent challenge facing the prison system. At the beginning of the 2001 visit, the delegation was informed that the remand prison population had decreased by 30,000 since 1 January 2000. An example of that trend was SIZO No 1 in Vladivostok, which had registered a 30% decrease in the remand prison population over a period of three years.
The CPT welcomes the measures taken in recent years by the Russian authorities to address the problem of overcrowding, including instructions issued by the Prosecutor General's Office, aimed at a more selective use of the preventive measure of remand in custody. Nevertheless, the information gathered by the Committee's delegation shows that much remains to be done. In particular, overcrowding is still rampant and regime activities are underdeveloped. In this respect, the CPT reiterates the recommendations made in its previous reports (cf. paragraphs 25 and 30 of the report on the 1998 visit, CPT (99) 26; paragraphs 48 and 50 of the report on the 1999 visit, CPT (2000) 7; paragraph 52 of the report on the 2000 visit, CPT (2001) 2).
125. As during previous visits, many prisoners expressed scepticism about the operation of the complaints procedure. In particular, the view was expressed that it was not possible to complain in a confidential manner to an outside authority. In fact, all complaints, regardless of the addressee, were registered by staff in a special book which also contained references to the nature of the complaint. At Colony No 8, the supervising prosecutor indicated that, during his inspections, he was usually accompanied by senior staff members and prisoners would normally not request to meet him in private “because they know that all complaints usually pass through the colony's administration”.
In the light of the above, the CPT reiterates its recommendation that the Russian authorities review the application of complaints procedures, with a view to ensuring that they are operating effectively. If necessary, the existing arrangements should be modified in order to guarantee that prisoners can make complaints to outside bodies on a truly confidential basis.”
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Submissions by the parties
B. The Court's assessment
(a) General principles
(b) Application of the general principles to the present case
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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
B. The Court's assessment
(a) General principles
(b) Application of the general principles to the present case
(i) The danger of absconding
(ii) The danger of perverting the course of justice
(iii) The danger of reoffending and the preservation of public order
(iv) Alternative measures of restraint
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 12 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis