(Application no. 30033/05)
19 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 Polonskiy 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. The applicant's arrest and ill-treatment
B. Investigation into alleged ill-treatment
C. Criminal proceedings against the applicant
1. Charges of unlawful possession of arms and forgery of documents
2. Charges of membership of an armed criminal gang, robbery, infliction of serious injuries and murder
(a) The course of the investigation and the trial
(b) Decisions concerning the application of a custodial measure
“As the trial has not yet been completed, it is necessary to extend the defendants' detention.
The court considers that the gravity of the charges justifies applying to the defendants a preventive measure in the form of detention.
However, in addition to the gravity of the charges – namely organisation of an armed gang under [the applicant's] leadership and commission of assaults on citizens and murders – carrying a sentence of up to twenty years' imprisonment for each of the defendants, the court also takes into account other factors.
Thus, the court is entitled to believe that ... application to the defendants of an undertaking not to leave the town or other preventive measures will not exclude the possibility of their absconding or exercising pressure on participants to the proceedings and jurors.
The defendants' argument that their detention has been excessively long is not in itself sufficient to warrant release.
The defendants have not produced any material showing the existence of factors making impossible [sic] their stay in detention facility conditions.
The court is not convinced by the defendants' argument that they have not been granted access to the materials submitted by the prosecution in support of their requests for extension. The court has at its disposal only the materials from the criminal case file which had been studied by the defendants.
The court considers that the grounds for the detention of the defendants charged with serious and particularly serious criminal offences are relevant and sufficient. Their detention serves the interest of the society, as it prevents commission of similar criminal offences and ensures high-quality and effective examination of the present criminal case.
The criminal case file contains sufficient evidence against each defendant to justify an extension of their detention ...”
D. Impounding of the applicant's cars
II. RELEVANT DOMESTIC LAW
A. Criminal-law remedies against ill-treatment
1. Applicable criminal offences
2. Investigation of criminal offences
B. Placement in custody and detention pending trial
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Arguments by the parties
B. The Court's assessment
(a) Effectiveness of the investigation
(b) Alleged ill-treatment of the applicant
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
III. 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. Release may be conditioned by guarantees to appear for trial.”
1. Arguments by the parties
2. The Court's assessment
(a) General principles
(b) Application to the present case
(i) Period to be taken into consideration
(ii) Reasonableness of the length of the period in issue
IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
V. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
VI. 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 30,000 (thirty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;
(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 19 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Malinverni is annexed to this judgment.
CONCURRING OPINION OF JUDGE MALINVERNI
“Taking into account that the applicant was detained on the basis of Article 5 § 1 (c), and notwithstanding the fact that his detention was also grounded on Article 5 § 1 (a), the Court considers that this period should be taken into consideration for the purposes of Article 5 § 3.”