(Application no. 40258/03)
15 January 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 Yudayev v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 11 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Taking into account that at present the investigation does not have enough evidence to bring charges against [the applicant] and that the crime committed by him is serious, [the applicant], if left at liberty, may abscond, conceal the yet undiscovered evidence of his criminal activity, interfere with the establishment of the truth or re-offend.”
“The court considers that the investigator’s request should be granted for the following reasons. It is clear from the materials submitted [by the investigator] that the applicant was involved in the forgery of documents of the private company ‘Svetlana’ and possessed the seals of that company... During the search in [the applicant’s] flat many seals, seal matrices and parts for seal manufacturing ... were found. However, no seals or stamps of the ‘Svetlana’ company were discovered. Given that [the applicant] is suspected of committing a serious criminal offence, there are grounds to believe that if left at liberty, he may obstruct the investigation and destroy physical evidence.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Russian Constitution
“1. Everyone has the right to liberty and personal integrity.
2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”
2. The Code of Criminal Procedure
3. Case-law of the Constitutional Court
“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 the 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 measure of restraint applied at previous stages.
Therefore, when the case is transmitted by the prosecution to the trial court, the measure of restraint 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 measure of restraint 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 measure of restraint 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.”
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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...”
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. Release may be conditioned by guarantees to appear for trial.”
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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.”
1. Appeal against the detention order of 30 April 2003
2. Appeals against the detention orders of 4 August and 9 September 2003
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
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 3,000 (three 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 15 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis