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SHAPOSHNIKOV v. RUSSIA - 8998/05 [2010] ECHR 1207 (29 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1207.html
Cite as:
[2010] ECHR 1207
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FIRST
SECTION
CASE OF SHAPOSHNIKOV v. RUSSIA
(Application
no. 8998/05)
JUDGMENT
STRASBOURG
29 July
2010
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 Shaposhnikov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 8998/05) 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 Igor Borisovich
Shaposhnikov (“the applicant”), on 10 February 2005.
The
applicant was represented by Mr O. Yadonist, a lawyer practising in
Dimitrovgrad in the Ulyanovsk Region. The Russian Government
(“the Government”) were represented by Ms V. Milinchuk
and subsequently by Mr G. Matyushkin, the representatives of the
Russian Federation at the European Court of Human Rights.
The
applicant alleged that his pre-trial detention from 4 to 13 January
2005 was unlawful contrary to Article 5 § 1 of the Convention.
On
26 November 2007 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 § 1).
The
Government objected to the joint examination of the admissibility and
merits of the application, but the Court rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1972 and lives in Ulyanovsk.
On
16 September 2004 he was arrested on suspicion of drug trafficking.
On
18 September 2004 the applicant was charged with the attempted sale
of a particularly large quantity of drugs. On the same date the
Dmitrovgrad Town Court of the Ulyanovsk Region (“the Town
Court”) authorised his pre-trial detention. The court did not
set any time-limit. However, it referred to Article 108 of the
Criminal Code of the Russian Federation (“the CCrP”, see
paragraph 19 below).
On
16 December 2004 the investigation was completed and the prosecution
submitted the case to the Town Court for trial.
On
22 December 2004 the Town Court scheduled a preliminary hearing for
30 December 2004 and held, without further details, that the
applicant should stay in detention. The time-limit for the extension
was not specified.
On
30 December 2004 the Town Court carried out a
preliminary examination of the case and noticed various shortcomings
and defects in the investigation. With reference to Article
237 § 1 of the CCrP (see paragraph 24 below) the court
decided to return the file to the prosecutor to remedy the
violations within five days. The court further ruled that the measure
of restraint applied to the applicant “should remain
unchanged”, without setting any time-limit or providing any
reasons for that decision.
On
an unspecified date the prosecutor of the Town Court received the
case file. On 11 January 2005 the prosecutor forwarded the file to
the investigator.
By
a decision of 12 January 2005 the investigator observed that the
five-day time-limit set out to remedy the violations had expired
on 4 January 2005. However, the decision stated that the
time-limit was not respected for a valid reason, namely because 1-10
January 2005 were public holidays in Russia and it was therefore
impracticable to complete the actions required by the Town Court’s
decision of 30 December 2004. The investigator accordingly decided to
“reinstate the missed five-day time-limit for remedying the
violations” and “to consider 14 January 2005 as the
expiry date of the five-day time-limit”.
On
the same date the investigator applied to the Town Court for an
extension of the investigation period until 25 January 2005 on
account of the impossibility of remedying the violations by 14
January 2005. By a separate motion the investigator applied for an
extension of the applicant’s pre-trial detention until 25
January 2005 because the time-limit for the investigation had been
extended for a valid reason and the corrections to the investigation
file could not have been made by 14 January 2005. The investigator,
in particular, reasoned as follows:
“On 12 January 2005 the period of the
investigation of the present criminal case was extended until 25
January 2005, and therefore it has become necessary to extend the
period of [the applicant’s] detention, which is due to expire
on 14 January 2005, for a further eleven days, that is until 25
January 2005”
On
13 January 2005 the Town Court allowed the application, having found,
in particular, as follows:
“The investigator applied for an extension of [the
applicant’s] detention ... until 25 January 2005... in
order to complete the investigation ... on the ground that the period
of the investigation had been extended...while the period of the
applicant’s detention was due to expire.
[...] The court considers the request well-founded and
upholds it because the investigation cannot be completed within the
established time-limit. ”
The
court further held that the applicant did not have a permanent place
of residence, was charged with a serious criminal offence and was
liable to abscond and reoffend, as well as threaten witnesses and
obstruct the course of justice if at liberty.
With reference to Article 109 of the CCrP the court extended the
applicant’s detention for an additional eleven days, until
25 January 2005. Therefore, the period of detention would amount
to four months and nine days in total.
On
17 January the applicant appealed against the decision. He argued
that after 4 January 2005 he had been held in custody unlawfully and
that the domestic law of criminal procedure did not allow for the
reinstatement of time-limits for pre-trial detention. The period of
public holidays could not be excluded from the overall duration of
the pre-trial detention and did not constitute a valid reason for any
extension. Moreover, the first-instance court had remitted the case
unlawfully on account of the necessity to complete the investigation
because, in accordance with CCrP, if the case file was sent back to
the prosecutor to remedy the violations, no further investigative
activities could be carried out.
On
4 February 2005 the Ulyanovsk Regional Court upheld the extension
order. The court established that the applicant had been placed in
custody on 18 November 2004 and thereafter the detention was extended
until 25 January 2005, in accordance with Article 108 § 1 and
109 § 2. When authorising the extension, the
lower court had correctly taken into account the applicant’s
character, his family status, the gravity of the charges against him
and other relevant circumstances. The appeal court rejected the
applicant’s arguments as having no basis in domestic law.
On
22 March 2005 the Dmitrovgrad Town Court convicted the applicant as
charged and sentenced him to eleven years’ imprisonment. His
detention from 16 September 2004 counted toward the applicant’s
prison term.
II. RELEVANT DOMESTIC LAW
Article 108 §§ 1, 3-6 of the CCrP
requires a judicial decision by a district or town court on a
reasoned request by a prosecutor, supported by appropriate evidence,
before a defendant can be detained or his or her detention extended.
The CCrP 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.
After arrest, the suspect is placed in custody “during
the investigation”. A period of detention during the
investigation of criminal offence shall not last longer than two
months. If it is impossible to complete the preliminary investigation
within two months and there are no grounds for modifying or lifting
the preventive measure, this time-limit may be extended by up to six
months by a judge of a district or military garrison court of the
relevant level. No extension beyond eighteen months is possible
(Article 109 §§ 1-3). The period of detention “during
the investigation” is calculated up to the day when the
prosecutor sends the case to the trial court (Article 109 § 9)
From the date the prosecutor forwards the case to the
trial court, the defendant’s detention is “before the
court” (or “during the trial”). The CCrP
establishes that the term of detention “during the trial”
is calculated from the date the court receives the file to the date
the judgment is given. The period of detention during “the
trial” 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 (Article 255 §§ 2
and 3).
Upon receipt of the case file the judge must
determine, in particular, whether the defendant should remain in
custody or be released pending trial (Articles 228 § 3 and 231 §
2 (6) of the CCrP).
The
trial judge can return the case to the prosecutor to remedy the
defects impeding the trial, for instance if the judge has identified
serious deficiencies in the bill of indictment or a copy of it was
not served on the accused (Articles 236 § 1 (2), 237 § 1 of
the CCrP). The judge must require that the prosecutor comply within
five days and must also decide on a preventive measure in respect of
the accused (Article 237 § 2).
At
any time during the trial the court may order, vary or revoke any
preventive measure, including detention (Article 255 § 1). When
returning the case to the prosecutor, the judge has to decide upon
the measure of restraint to be applied to the accused (Article 237 §
3).
An
appeal against such a decision lies to the higher court. It must be
lodged within ten days and examined within the same time-limit as an
appeal against the judgment on the merits (Article 255 § 4 of
the CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF
THE CONVENTION
The
applicant complained invoking Article 5 § 1 of the Convention
that his detention from 4 to 13 January 2005 had been unlawful. The
relevant parts of Article 5 read as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
A. The parties’ submissions
The
applicant argued that his detention from 4 to 13 January 2005 had not
been authorised by a proper authority in accordance with the
procedure prescribed by law. He submitted that the lawful term of his
detention had ended on 4 January 2005 when the five-day period for
the remedying of the violations by the prosecutor had expired. On 13
January 2005 the Town Court had authorised the detention during the
disputed period retroactively, in violation of the domestic law of
criminal procedure.
The
Government contested that argument. They submitted that the applicant
had not exhausted domestic remedies because
he had failed to appeal against the decision of 30 December 2004 in
the part concerning the extension of the pre-trial detention. In any
event, the applicant’s detention from 4 to 13 December 2005 was
duly authorised by the decision of 30 December 2004, compatible
with the domestic procedural rules and free from arbitrariness. Given
that the applicant remained in detention “pending trial”
until the date of the receipt of his case by the prosecutor, Article
255 of the CCrP was applicable. In accordance with that provision,
the applicant could have remained in detention “pending trial”
for up to six months (see paragraph 22 above). As regards the
five-day time-limit set out by the domestic court, it only concerned
the remedying of the violations in the investigation file by the
prosecutor, but not the applicant’s pre-trial detention. The
five-day time-limit set out for remedying the violations, in its
turn, started running from the day the investigator received the
file, which was 11 January 2005, immediately after the public
holidays. Upon receipt of the case file, the investigator duly asked
for an extension of the time-limit for the investigation and the
applicant’s detention pending the investigation. Such an
extension was authorised by the Town Court’s decision of
13 January 2005. Therefore, the applicant’s detention was
lawful. The Government contended that under the judgment of 22 March
2005 the period between 4 and 13 January 2005 had counted toward
the applicant’s prison term.
The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
As
regards exhaustion of domestic remedies, the Court reiterates that
the complaint intended to be made to the
Court must first have been made – at least in substance –
to the appropriate domestic body and in compliance with the formal
requirements and time-limits laid down in domestic law (see, among
many others, Cardot v. France, 19 March 1991, § 34,
Series A no. 200). Turning to the
application at hand, the Court notes that the applicant complains
solely of the lawfulness of his detention during the period from 4 to
13 January 2005 whereas he does not dispute the legality of his
detention either before or after these dates. Therefore,
in the eyes of the Court the crux of the applicant’s problem
was not the extension of his detention after 30 December 2004 in
itself, but the exact duration and the grounds for the detention
after 4 January 2005, as well as the manner in which the authorities
interpreted and applied the extension order of 30 December 2004.
The Court notes that the applicant raised this issue in the court
proceedings concerning the extension on 13 January 2005 and
subsequently on appeal on 4 February 2005. In particular, he
submitted in the grounds of appeal that his detention on 4-13 January
2005 had been unlawful. The domestic courts examined the substance of
these arguments and rejected them as unfounded. In the Court’s
view, in these particular circumstances the applicant had exhausted
the domestic remedies available to him (see, mutatis
mutandis, Dzhavadov v.
Russia, no. 30160/04, § 27, 27 September 2007).
The Government’s objection must therefore be dismissed.
As
regards the Government’s argument that a deduction had been
made from the applicant’s sentence, and insofar as they may be
understood to raise the objection concerning the loss of the victim
status, the Court considers that it was not properly substantiated;
it thus rejects it.
Given
that the applicant does not raise any complaint as regards his
detention beyond the period from 4 to 13 January 2005, the Court does
not consider it necessary to examine the lawfulness of the whole
period of the applicant’s pre-trial detention of its own
motion. However, the Court will have regard to the relevant
circumstances for its analysis in relation to the applicant’s
detention on the disputed dates.
The
Court further notes that the complaint in respect of the above period
of pre-trial detention is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
The
Court reiterates that a trial court’s decision to maintain a
custodial measure would not breach Article 5 § 1 provided that
the 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
Korchuganova v. Russia, no. 75039/01, § 62, 8 June
2006, and Pshevecherskiy v. Russia, no. 28957/02, §§
41-46, 24 May 2007).
The
Court observes that the latest domestic judicial decision addressing
the issue of the applicant’s detention was that of 30 December
2004, whereby the domestic court decided that the measure of
restraint should remain unchanged.
The
Court accepts that on 30 December 2004 the trial court acted within
its powers and there is nothing to suggest that its decision to
maintain the applicant’s custodial measure was invalid or
unlawful under domestic law at the relevant time. The question thus
arises as to whether the decision that the measure of restraint
should remain unchanged could be considered to be “an
appropriate order”.
At
the outset, the Court observes that judicial decision of 30 December
2004, as well as that of 22 December 2004, merely upheld the
previously ordered measure of restraint, without either setting any
time-limit or stating reasons for maintaining the applicant in
custody or for a periodic review of the preventive measure.
First,
turning to the duration of detention, the Court notes that the main
controversy between the parties relates to the issue of whether the
decision of 30 December 2004 set, albeit implicitly, any time-limit
for the applicant’s detention, and if so, whether such a
time-limit extended beyond the five days granted by the court to
correct the mistakes in the investigation file.
The
Court notes in this respect the Government’s argument that in
the present case the five-day time-limit referred to by the applicant
was only set by the domestic court for remedying the violations by
the investigator and did not apply to the applicant’s pre-trial
detention. The Court accepts this submission.
The Court further notes that it has on many occasions
examined the peculiar feature of the Russian legal framework
consisting of detention “pending investigation” and
detention “pending trial”, and the corresponding methods
of calculating relevant periods of detention. In such a framework,
several non-consecutive periods of detention within one set of
criminal proceedings can be classified as “pending
investigation” or “pending trial”, for instance
when the trial judge returns the case to the prosecutor (see, among
others, Shteyn (Stein) v. Russia,
no. 23691/06, § 91, 18 June 2009).
Since
the order of 30 December 2004 did not cite any legal basis, it is
unclear whether rules of Article 109 or 255 of the Code of Criminal
Procedure applied during the contested period of time. The Court
notes the Government’s submission that the period from 30
December 2004 to 11 January 2005, when the prosecutor received
the file, was covered by Article 255 of the CCrP. They argued, in
other words, that until the date of receipt of the file by the
prosecutor, the applicant was detained “pending trial”
and could be held in such detention for up to six months. The Court
observes, however, that the order of 30 December 2004 did not
refer to Article 255 of the CCrP. The remand judge did, however, cite
Article 237 of the CCrP, which required that, after receipt of the
case file from the judge, the prosecutor should comply with his or
her instructions within five days. That was not done in the present
case. Indeed, from 30 December 2004 until an unspecified point before
11 January 2005, when the Dmitrovgrad town prosecutor received
the file, the applicant’s case was neither with the trial judge
nor with the prosecuting authority.
The
Court further notes the Government’s argument that the five-day
time-limit for remedying the violations by the prosecution had
started running from the date of receipt of the file by a prosecutor.
However, while the prosecutor was indeed bound by the five-day
time-limit once in possession of the case file, the period preceding
the receipt appeared to be virtually unlimited, given the absence of
sufficiently precise rules concerning the legal grounds for detention
between the return of the case to the prosecutor and the receipt of
the file by the prosecution authority.
Therefore,
the applicant was placed in a situation of uncertainty as to the
exact duration of his continued detention at that stage (see, mutatis
mutandis, Shteyn (Stein) v. Russia, cited above, §
92).
Second,
the Court observes that on 30 December 2004 the Town Court gave no
reasons for its decision to remand the applicant in custody. In this
respect the Court has already held in a number of cases that the
absence of any grounds given by judicial authorities in their
decisions authorising detention is incompatible with the principle of
protection from arbitrariness enshrined in Article 5 § 1 (see,
mutatis mutandis, Nakhmanovich v. Russia, no. 55669/00,
§§ 70-71, 2 March 2006, and Stašaitis v.
Lithuania, no. 47679/99, § 67, 21 March 2002). In the
present case, the applicant was in a state of uncertainty as to the
grounds for his detention from 30 December 2004 to 13 January
2005, the date on which the court re examined the provisional
measure of restraint in respect of him.
Third,
it appears from the case materials that the domestic authorities
dealing with the case did not interpret the detention order of 30
December 2004 uniformly. Indeed, as it clearly follows from the
prosecutor’s decision of 12 January 2005 to apply for an
extension of the applicant’s detention, the prosecution
authority itself had considered that the applicant’s pre-trial
detention was to expire on 14 January 2005 (see paragraph 14 above).
Likewise – and contrary to the Government’s submission –
it appears from the prosecutor’s decision of 12 January 2005 to
reinstate the time-limits for the investigation (see paragraph 13
above) that the five-day time-limit set out for remedying the
violations had expired on 4 January 2005, which was within five days
of the date of the delivery of the respective court decision.
Having
regard to the inconsistent and mutually exclusive positions of the
domestic authorities on the issue of legal regulation and the exact
duration of the applicant’s detention during the period when
the case was neither with the court nor with the investigator, as
well as the lack of reasons in the extension order of 30 December
2004, the Court considers
that the latter order did not comply with the requirements of
clarity, foreseeability and protection from arbitrariness, which
together constitute the essential elements of the “lawfulness”
of detention within the meaning of Article 5 § 1.
Therefore,
and having regard to its conclusions in the paragraph 33 above
concerning the scope of the complaint, the Court finds that there has
been a violation of Article 5 § 1 of the Convention on account
of the applicant’s detention on remand from 4 to 13 January
2005.
II. 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.”
The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
5 § 1 of the Convention.
Done in English, and notified in writing on 29 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
