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SYCHEV v. RUSSIA - 14824/02 [2010] ECHR 238 (23 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/238.html
Cite as:
[2010] ECHR 238
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THIRD
SECTION
CASE OF
SYCHEV v. RUSSIA
(Application
no. 14824/02)
JUDGMENT
STRASBOURG
23
February 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 Sychev v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura,
Boštjan M.
Zupančič,
Anatoly Kovler,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 14824/02) 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 Oleg Ivanovich Sychev
(“the applicant”), on 15 March 2002.
The
applicant was represented by Mr V. Postnikov, a lawyer practising in
the town of Tyumen. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
former Representative of the Russian Federation at the European Court
of Human Rights.
On
15 September 2005 the President of the Third Section decided to give
notice of the application and decided to communicate to the
Government the complaints concerning the lawfulness of the
applicant’s detention on remand, its allegedly excessive length
and the length of proceedings in his criminal case. It was also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1959 and lives in the town of Novyy Urengoy,
the Tyumen Region.
The
applicant is a military serviceman with the rank of Lieutenant
Colonel. Between 1996 and 2000 he was employed as the head of road
construction department no. 1393 in the Tyumen Garrison.
A. The applicant’s arrest and the subsequent
investigation
On 2 June 2000 the Military Prosecutor of the Tyumen
Garrison (“the prosecutor”) brought criminal proceedings
against the applicant on suspicion of aggravated theft.
The
applicant was arrested and searched on the same date. The arrest
warrant mentioned the existence of witnesses who had indicated the
applicant’s involvement in criminal activity.
On
that date police officer Pe. reported that the applicant had actively
resisted arrest and that the police had had recourse to physical
force to apprehend him. It does not appear that the report was ever
mentioned by the courts in their assessment of the need to detain the
applicant on remand pending the criminal proceedings.
On
5 June 2000 the prosecutor also initiated proceedings in respect of
the applicant on suspicion of aggravated fraud.
On
the same date the applicant was officially charged with several
counts of theft and fraud, abuse of power and obstructing the course
of justice and the preliminary investigation.
On
6 July he was also charged with bribery.
B. The detention order of 5 July 2000
On
5 July 2000 the prosecutor authorised the applicant’s detention
on remand, having noted the risk that he might flee or impede the
investigation, as well as the gravity of the charges brought against
him.
The
detention order was appealed against by the applicant and then upheld
by the Military Court of the Tyumen Garrison on 26 September 2000.
C. The detention order of 22 September 2000
On
22 September 2000 the Military Prosecutor of the Ural Military
District extended the applicant’s detention on remand to five
months, that is, until 2 November 2000. In making the order, the
prosecutor described in detail all the steps that had been taken by
the investigation authorities until then, such as questioning several
dozen witnesses, organising confrontations with witnesses and the
co-accused, searching the co-accused’s flats and seizing
various documents.
D. The referral of the applicant’s criminal case
to the trial court
On
2 November 2000 the acting Military Prosecutor of the Tyumen Garrison
approved the bill of indictment and the case was sent to the trial
court.
On
4 November 2000 the Military Court of the Tyumen Garrison accepted
the case for trial.
By a decision of 18 November 2000 the court scheduled
the first hearing for 6 December 2000 and noted, without going into
further detail, that the preventive measure should remain unchanged.
E. The hearings of 6 and 7 December 2000
On
6 December 2000 judge S. and two lay assessors, officers Ya. and M.,
started the examination of the applicant’s case. The applicant
was represented by a lawyer, Mr Trofimov.
In
a decision dated 6 December 2000 the court granted a request by the
prosecutor for a psychiatric expert examination of the applicant. The
court noted the prosecutor’s description of the applicant’s
behaviour during the investigation of the case, including occasional
threats and verbal attacks against escorting policemen, attempts to
punch them, and banging his head against the wall. In addition, the
applicant was said to have eaten the schedule of his access to the
case file.
The proceedings in the applicant’s criminal case
were therefore suspended. In the same decision the court made the
applicant available for examination in the Tyumen Regional
Psychiatric Clinical Hospital and ordered him to remain in custody.
In
a document dated 7 December 2000 judge S. informed the military
prosecutor of the Tyumen Garrison that the investigator G. had been
perfectly aware of the applicant’s allegedly “inappropriate”
behaviour and that it had been his duty to order the latter’s
examination at an earlier date. His failure to do so during the
preliminary investigation was viewed as a serious shortcoming which
had adversely affected the applicant’s constitutional rights
since it had resulted, among other things, in the extension of the
period of his detention.
F. The applicant’s placement in hospital and the
related review proceedings
It appears that on 8 December 2000 the applicant was
admitted to hospital. The applicant appealed against the decision of
6 December 2000 and also brought proceedings against the hospital.
In
a letter dated 15 December 2000 judge S. asked the head of the
department of in-patient psychiatric examinations to suspend the
applicant’s examination in view of his appeal against the
decision of 6 December 2000.
On 20 December 2000 the case file was sent to the
Military Court of the Ural Command for an examination of the
applicant’s appeal. On 11 January 2001 the court rejected
the appeal and upheld the impugned decision.
Owing
to the heavy workload in the military communication services the case
file was not returned to the trial court until 26 March 2001. On the
next day it was sent to the hospital where the applicant was being
kept.
On
9 February 2001 the applicant was diagnosed as sane by the experts
and on that date he was apparently discharged from the hospital.
He
submits that, notwithstanding the examination report, the court sent
him, again, to the same hospital for a psychiatric examination on
4 April 2001. No such further examination having allegedly been
carried out, he was discharged from the hospital on 20 April 2001.
According to the applicant, his medical documents contained the
diagnosis “sane” accompanied by a note indicating that
this was the second such diagnosis (повторно).
In
so far as the applicant complained about his detention in the
hospital to the civil courts, in a judgment of 26 April 2001 the
Tyumen District Court dismissed his complaint against the Tyumen
Regional Psychiatric Hospital, finding that he had been placed there
in accordance with a court order and that no violation of his
physical integrity or any other rights had therefore taken place.
The applicant also complained to the Prosecutor’s
Office of the Tyumen Region, alleging that he had been unlawfully
admitted to the psychiatric hospital and detained there. By a
decision of 11 December 2001 a prosecutor refused to initiate
criminal proceedings in connection with the applicant’s
complaint. That decision was quashed on 7 March 2002 by a superior
prosecutor and the relevant case file was sent back for additional
investigation. On an unspecified date the case was discontinued.
G. The trial proceedings following the applicant’s
examination
On
15 May 2001 the trial court received the case file from the hospital,
together with the examination report.
It
appears that owing to the court’s workload, the next hearing
was scheduled for 29 August 2001.
H. The trial hearings of 29-31 August 2001 and related
review proceedings
At
the hearing of 29 August 2001 the applicant requested the court to
release him and to refer the case back for an additional
investigation, with reference, among other things, to the
prosecutor’s failure clearly to formulate the charges of
bribery. He further asked for additional access to the case file.
In a decision of 31 August 2001 the trial court
rejected the applicant’s requests for release and an additional
investigation. It appears that in its reasoning the court merely
cited the prosecutor’s opinion on the applicant’s
complaints. In respect of the preventive measure it was noted that
the applicant faced very serious charges and that he had attempted to
obstruct the course of justice and the conduct of the preliminary
investigation and on one occasion to abscond. The decision did not go
into any further detail, and did not specify the period of the
applicant’s further detention.
At
the same time the court ordered that the applicant and his lawyer
should be granted access to the case file and adjourned the
proceedings, without setting any further time-limit.
On
30 October 2001 the Military Court of the Ural Command upheld the
decision of 31 August 2001 on appeal. The court repeated the
reasoning of the trial court without going into further detail.
I. The letter dated 27 November 2001 from the
prosecutor supervising the execution of punishments
In
a letter dated 27 November 2001, apparently in response to the
applicant’s numerous complaints, the prosecutor supervising the
execution of punishments notified the President of the Military Court
of the Ural Command that the applicant had been kept in detention
since June 2000. He further noted that since November 2000, when the
trial court had accepted the case for trial, until November 2001
there had been two court hearings, the latter ending with a new
adjournment for an indefinite period of time. The prosecutor lastly
emphasised that the applicant was being kept in an overcrowded
detention facility and requested that measures be taken to expedite
the proceedings.
In
response, the President of the Military Court of the Tyumen Garrison
informed the prosecutor that the situation described in his letter
was due to the applicant’s own behaviour, and in particular to
his constant appealing against the trial court decisions and his
request for additional access to the case file. The President pointed
out that on the last occasion when the applicant had had access, on 4
December 2001, he had behaved “inappropriately” again. In
particular, he had shouted at the courier, had sworn and had refused
to familiarise himself with the documents in the absence of a
prosecutor.
J. The trial hearings of 13 and 17 December 2001 and
the decision on the applicant’s fresh psychiatric examination
The
proceedings resumed on 13 December 2001, presided over by judge Kh.
with two law assessors, officers Ya. and Ch. The applicant again
requested the court to release him and to refer the case back for an
additional investigation because the charges of bribery were
allegedly unclear. He also requested the court to accept his former
wife, his son and a Mr P. as his representatives and filed several
other requests.
On
a motion by the prosecutor the court adjourned the hearing until
17 December 2001.
In a decision of 17 December 2001, acting upon the
prosecutor’s request, the trial court ordered a fresh
in-patient psychological and psychiatric examination of the applicant
in the Serbskiy State Scientific Centre of Social and Forensic
Psychiatry in Moscow. The court referred to the applicant’s
behaviour on 4 December 2001, to the “number and content”
of his complaints to different bodies, to the impossibility of
controlling his conduct and to the lack of “effective contact”
with him during the court hearings. In view of the above, the court
raised doubts as to the previous experts’ conclusions and said
that the applicant’s psychiatric condition needed further
clarification. The proceedings were adjourned until the examination
report was available.
In a decision of the same date the court rejected the
applicant’s requests for release, with reference to the gravity
of the charges and to the fact that “there were sufficient
grounds to consider that, if released, he would obstruct the
establishment of the truth and abscond since such attempts have
already taken place, according to the case file”. No
time-limits were set for the extended detention period.
In
the same decision the court rejected the applicant’s request to
have his former wife, his son and Mr P. accepted as his
representatives. At the same time the court allowed a certain Ms
Porfilo to represent him.
On
5 February 2002 the Military Court of the Ural Command upheld the
decision of 17 December 2001 on appeal.
K. Hearing of 14 August 2002 and the applicant’s
release on bail
The
examination of the applicant’s case resumed with the hearing of
14 August 2002, the applicant and his two representatives, Mr
Trofimov and Mr Postnikov, being present. The applicant submits that
Ms Porfilo was not duly notified about the hearing and was absent.
It
appears that at the hearing Mr Trofimov again requested the court to
change the preventive measure applied in respect of the applicant.
In
a decision of 14 August 2002 the trial court granted the request,
terminated the applicant’s detention and released him on bail
of 10,000 Russian roubles. The court stated, in particular:
“Having examined the [counsel’s] request
together with other circumstances of the case, the nature of the
charges levelled against Sychev, the information about his
personality and his income, and the fact that he has a permanent
place of residence, the military court considers it possible to vary
the preventive measure by replacing detention with bail and fixes its
amount at 10,000 roubles.”
L. Partial discontinuation of the criminal proceedings
against the applicant
In
a decision of 26 August 2002 the trial court discontinued the
criminal proceedings against the applicant for theft, fraud and
obstructing the course of justice and the preliminary investigation
because the prosecutor had dropped those charges in view of the lack
of evidence that the applicant had committed the crimes concerned.
It does not appear that the applicant appealed against
that decision.
M. The trial court judgment and the special ruling
It appears that on 4 September 2002 the Military Court
of the Tyumen Garrison convicted the applicant on the remaining
charges but dispensed him from punishment, having applied an amnesty
law. It appears that the applicant did not appeal against the trial
court’s judgment.
On
the same day the court issued a special ruling (частное
постановление)
indicating several violations of the law on criminal procedure during
the preliminary investigation of the applicant’s case. In
particular, it was noted that the investigator had failed on numerous
occasions to inform the applicant about his right to appeal against
his decisions, that the applicant had not been provided with counsel
upon his arrest and had been questioned in the absence of counsel,
that a mass of evidence had been unlawfully obtained and added to the
case file and that the documents in the file contained numerous
unlawful erasures and corrections.
Judge
Y. requested the military prosecutor of the Tyumen Garrison to take
note of the above-mentioned shortcomings and to inform him about the
measures taken in this connection.
II. RELEVANT DOMESTIC LAW
Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federative 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”).
A. Preventive measures
“Preventive measures” or “measures
of restraint” (меры пресечения)
include an undertaking not to leave a town or region, parole, bail
and detention on remand (Article 89 of the old CCrP, Article 98 of
the new CCrP).
B. Authorities ordering detention on remand
The Russian Constitution of 12 December 1993
establishes that a judicial decision is required before a defendant
can be detained or his or her detention extended (Article 22).
Under
the old CCrP, a decision ordering detention on remand could be taken
by a prosecutor or a court (Articles 11, 89 and 96).
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).
C. Grounds for ordering detention on remand
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 89 of the old 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 and family
status and other circumstances (Article 91 of the old CCrP, Article
99 of the new CCrP).
Before
14 March 2001, detention on remand was authorised if the accused was
charged with a criminal offence carrying a sentence of at least one
year’s imprisonment or if there were “exceptional
circumstances” in the case (Article 96). On 14 March 2001 the
old CCrP was amended to permit defendants to be remanded in custody
if the charge carried a sentence of at least two years’
imprisonment, if they had previously defaulted or had no permanent
residence in Russia or if their identity could not be ascertained.
The amendments of 14 March 2001 also repealed the provision that
permitted defendants to be remanded in custody on the sole ground of
the dangerous nature of the criminal offence they had committed. The
new CCrP reproduced the amended provisions (Article 97 § 1 and
Article 108 § 1) and added that a defendant should not be
remanded in custody if a less severe preventive measure was
available.
D. Time-limits for detention on remand
1. Two types of detention on remand
The
Codes distinguished between two types of detention on remand: the
first being “pending the investigation”, that is, while a
competent agency – the police or a prosecutor’s office –
investigated the case, and the second “before the court”
(or “during the trial”), that is, while the case was
being tried in court. Although there was no difference in practice
between them (the detainee was held in the same detention facility),
the calculation of the time-limits was different.
2. Time-limits for detention “pending the
investigation”
After arrest the suspect is placed in custody “pending
the investigation”. The maximum permitted period of detention
“pending the investigation” is two months but it can be
extended for up to eighteen months in “exceptional
circumstances”. Extensions were authorised by prosecutors of
ascending hierarchical levels (under the old CCrP) but must now be
authorised by judicial decisions taken by courts of ascending levels
(under the new CCrP). No extension of detention “pending the
investigation” beyond eighteen months is possible (Article 97
of the old CCrP, Article 109 § 4 of the new CCrP).
The
period of detention “pending the investigation” is
calculated up to the day when the prosecutor sends the case to the
trial court (Article 97 of the old CCrP, Article 109 § 9 of
the new CCrP).
3. Time-limits for detention “before the
court”/”during the trial”
From the date the prosecutor refers the case to the
trial court, the defendant’s detention is classified as “before
the court” (or “during the trial”).
Before 14 March 2001 the old CCrP set no time-limit
for detention “during the trial”. On 14 March 2001 a new
Article 239-1 was inserted which established that the period of
detention “during the trial” could not generally exceed
six months from the date the court received the file. However, if
there was evidence to show that the defendant’s release might
impede the thorough, complete and objective examination of the case,
a court could – of its own motion or on a request by a
prosecutor – extend the detention by no longer than three
months. These provisions did not apply to defendants charged with
particularly serious criminal offences.
The
new CCrP establishes that the term of detention “during the
trial” is calculated from the date the court received the file
up to the date on which 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 of no
longer than three months each (Article 255 §§ 2 and 3).
E. Expert examinations
Articles 78, 79 and 290 of the old CCrP made it
mandatory to conduct expert examinations concerning the mental state
of the accused in cases where doubts had arisen about the ability of
the accused to control and guide his or her own actions. It was also
possible, where justified, to order a fresh expert examination
concerning the same issues.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that his detention on remand, and especially his
repeated placement in psychiatric institutions for an examination of
his mental condition, had been unjustified and contrary to domestic
law. He relied on various Convention provisions in this connection,
including Articles 5, 6, 10 and 13.
The
Court will examine this complaint under Article 5 § 1 of the
Convention, which, in so far as relevant, provides 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; ...”
The
Government maintained that the entirety of the applicant’s
detention on remand had been lawful and justified.
The
applicant disagreed and maintained his initial complaints.
A. Admissibility
The Court reiterates that, according to Article 35 §
1 of the Convention, it may only deal with the matter after all
domestic remedies have been exhausted and within a period of six
months from the date on which the final decision was taken. The Court
observes that under Article 5 § 1 of the Convention
the applicant complains about separate detention terms, authorised by
decisions of the competent prosecution and judicial authorities, and
it is undisputed between the parties that the applicant did have
effective remedies at his disposal to challenge each of these
decisions separately (see, by contrast, Ječius v. Lithuania,
no. 34578/97, §§ 42-45 and 101-102, ECHR 2000 IX).
The
Court would note firstly that the applicant has clearly failed to
exhaust available domestic remedies in respect of the detention
orders dated 2 June, 22 September and 4 November 2000. The Court
further observes that the applicant lodged his application on 15
March 2002, whilst the final domestic decisions in respect of the
detention orders dated 5 July and 6 December 2000 were taken on
26 September 2000 and 11 January 2001 respectively. It follows that
the most recent period of detention that the Court may examine
commenced on 31 August 2001. That period of detention represented a
continuous situation which ended when the trial court made its
subsequent detention order on 17 December 2001, within the six months
preceding the lodging of the application. The Court therefore
considers that the part of the applicant’s complaint concerning
the detention orders issued before 31 August 2001 is inadmissible
partly for the applicant’s failure to exhaust and partly
because it has been submitted out of time. Overall, this part of the
application must be rejected in accordance with Article 35 §§
1 and 4 of the Convention.
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. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
The
Court finds that the applicant’s detention between 31 August
2001 and 14 August 2002 was covered by Article 5 § 1 (c) as
there existed – and this seems undisputed between the parties –
a reasonable suspicion of his having committed numerous crimes. The
detention took place in the context of pending criminal proceedings
against the applicant with a view to securing his presence before the
trial court and was based on court decisions.
In
ordering the applicant’s detention on 31 August and 17 December
2001 the trial court acted within its powers and there is nothing to
suggest that those decisions were invalid or unlawful under domestic
law (see paragraphs 54 and 60-63 above, and Stašaitis v.
Lithuania (dec.), no. 47679/99, 28 November 2000).
The
question whether the reasons for the decisions were sufficient and
relevant is analysed below in connection with the issue of compliance
with Article 5 § 3 (see Khudoyorov v. Russia, no.
6847/02, § 152, ECHR 2005 X).
In so far as the applicant objected to his placement
in a psychiatric institution, the Court notes that remand in custody
under Article 5 § 1 (c) of the Convention may be perfectly
compatible with lawful confinement in a psychiatric hospital effected
for the purpose of establishing whether or not the accused person’s
mental health has a bearing on his criminal liability for the
offences with which he has been charged; deprivation of liberty may
be justified on more than one of the grounds listed in Article 5 §
1 (see Gulub Atanasov v. Bulgaria, no. 73281/01, §
74, 6 November 2008). On the facts, the Court finds nothing
unreasonable or arbitrary in the impugned decision as the trial court
seemed to have been acting in good faith and may well have had good
reasons to believe that in the circumstances of the case a fresh
expert examination was justified and necessary. It is true that, in
view of the Court’s conclusions in paragraph 90 below, the
examination in question could have been conducted in a different
form, namely in an outpatient, and not in-patient, setting. The fact
remains, however, that the applicant’s continued detention
ordered by the trial court decision of 17 December 2001 was
covered by Article 5 § 1 (c) of the Convention and was not
unlawful.
Overall,
in view of the above, the Court finds that there has been no
violation of Article 5 § 1 of the Convention on account of the
applicant’s detention on remand between 31 August 2001 and 14
August 2002.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the domestic authorities had violated his
right to a trial within a reasonable time or to release pending trial
by repeatedly subjecting him to psychiatric examinations, which had
resulted in unjustified delays in the proceedings. He relied on
Article 5 § 3 of the Convention, which provides, in so far as
relevant, as follows:
“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.”
The
Government contested that argument.
The
applicant maintained his initial complaints.
A. Admissibility
The
Court considers that for the purposes of Article 5 § 3 of the
Convention, multiple, consecutive detention periods should be
regarded as a whole and the six month period should start to run
only from the end of the last period of remand in custody, in the
instant case from 14 August 2002 (see, for example, Ječius v.
Lithuania, cited above, § 44, Gubkin
v. Russia, no. 36941/02, §
134, 23 April 2009; Mishketkul and Others v. Russia,
no. 36911/02, § 40, 24 May 2007; and Solmaz v.
Turkey, no. 27561/02, §§ 34-37, 16 January 2007).
It follows that the Court is competent to make an overall evaluation
of the applicant’s entire detention on remand under Article 5 §
3 of the Convention.
The
Court notes that the present complaint 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.
B. Merits
1. General
principles
80. The
Court reiterates that the persistence of reasonable suspicion that
the person arrested has committed an offence is a condition sine
qua non for the
lawfulness of continued detention. However, 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
(see Labita v. Italy
[GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV).
81. The presumption is in
favour of release. As the Court has consistently held, the second
limb of Article 5 § 3 does not give judicial authorities a
choice between either bringing an accused to trial within a
reasonable time or granting him provisional release pending trial.
Until his conviction the accused must be presumed innocent, and the
purpose of the provision under consideration is essentially to
require his provisional release once his continuing detention ceases
to be reasonable (see, among other authorities, Castravet
v. Moldova, no.
23393/05, § 30, 13 March 2007; McKay
v. the United Kingdom
[GC], no. 543/03, § 41, ECHR 2006-X; Jabłoński
v. Poland, no.
33492/96, § 83, 21 December 2000; and Neumeister
v. Austria, 27 June
1968, § 4, Series A no. 8). Article 5 § 3 of the Convention
cannot be seen as unconditionally authorising detention provided that
it lasts no longer than a certain period. Justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov
v. Bulgaria, no.
38822/97, § 66, ECHR 2003-I).
82. It
is incumbent on the domestic authorities to establish the existence
of specific facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
a provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Rokhlina
v. Russia, no.
54071/00, § 67, 7 April 2005, and Ilijkov
v. Bulgaria, no.
33977/96, §§ 84-85, 26 July 2001). The national judicial
authorities must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying,
with due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty, and must
set them out in their decisions dismissing the applications for
release. It is not the Court’s task to establish such facts and
take the place of the national authorities which ruled on the
applicant’s detention. It is essentially on the basis of the
reasons given in the domestic courts’ 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 Korchuganova
v. Russia, no. 75039/01, § 72, 8 June 2006;
Ilijkov,
cited above, § 86; and Labita,
cited above, § 152).
2. Application to the
present case
(a) Period
to be taken into consideration
The
applicant was arrested on 2 June 2000 on suspicion of his involvement
in various crimes and was held in custody until 14 August 2002.
Notwithstanding the fact that he was twice placed in specialist
institutions for a psychiatric examination (see paragraphs 22-29 and
40 and the Court’s reasoning in paragraph 73), throughout this
time his detention was covered by Article 5 § 1 (c) of the
Convention.
Making an overall evaluation of the accumulated
periods under Article 5 § 3 of the Convention, the Court
therefore concludes that the period to be taken into consideration in
the instant case is two years, two months and twelve days.
(b) Reasonableness of the length of the
period in issue
It
is clear from the case file that the applicant’s detention was
initially warranted by a reasonable suspicion of his having committed
various crimes. It remains to be ascertained whether the judicial
authorities gave “relevant” and “sufficient”
grounds to justify his continued detention and whether they displayed
“special diligence” in the conduct of the proceedings.
The
Court observes that after the case had been submitted for trial, on
18 November 2000 the applicant was kept in detention with no
reference to any grounds. The trial court only noted that the
preventive measure applied to the applicant “should remain
unchanged” (see paragraph 17 above). Subsequently, in the
period from 18 November 2000 to 14 August 2002 the trial court
extended the applicant’s detention on three occasions. On 6
December 2000 the court failed to mention any grounds for the
decision, whilst on 31 August 2001 and 17 December 2001 the court
referred to the gravity of the charges against the applicant and
mentioned that he had attempted to obstruct the course of justice and
the conduct of the investigation and to abscond (see paragraphs 20, 33
and 41 above).
The
Court has repeatedly held that, although the severity of the sentence
faced is a relevant element in the assessment of the risk of an
accused absconding or reoffending, the need to continue the
deprivation of liberty cannot be assessed from a purely abstract
point of view, taking into consideration only the gravity of the
offence. Nor can continuation of detention be used to anticipate a
custodial sentence (see Belevitskiy v. Russia, no. 72967/01, §
101, 1 March 2007; Panchenko v. Russia, no. 45100/98, §
102, 8 February 2005; and Goral v. Poland, no. 38654/97, § 68,
30 October 2003). The Court further reiterates that any system of
mandatory detention pending trial is incompatible per se with
Article 5 § 3 of the Convention, it being incumbent on the
domestic authorities to establish and demonstrate the existence of
concrete facts outweighing the rule of respect for individual liberty
(see Belevitskiy, cited above, § 102, with further
references). As regards the existence of a risk of absconding, the
Court reiterates that such a danger cannot be gauged solely on the
basis of the severity of the sentence faced. It must be assessed with
reference to a number of other relevant factors which may either
confirm the existence of a danger of absconding or make it appear so
slight that it cannot justify detention pending trial (see Panchenko,
cited above, § 106; and Letellier v. France, 26 June
1991, § 43, Series A no. 207). In the present case the decisions
of the domestic authorities gave no reasons why, notwithstanding the
arguments put forward by the applicant in support of his applications
for release, they considered the risk of his absconding to be
decisive. The domestic decisions merely hinted at the existence of
sufficient grounds to believe that the defendants would abscond,
without saying what those grounds actually were. Since neither the
trial court nor the Government in the proceedings before the Court
have been able to substantiate the allegations that the applicant
might obstruct the course of justice and abscond, the Court finds
that the existence of such a risk was not established.
The Court would lastly emphasise that under Article 5
§ 3 the authorities are obliged to consider alternative measures
of ensuring the accused’s appearance at the trial when deciding
whether he or she should be released or detained. Indeed, the
provision proclaims not only the right to “trial within a
reasonable time or to release pending trial” but also lays down
that “release may be conditioned by guarantees to appear for
trial” (see Sulaoja v. Estonia, no. 55939/00, § 64
in fine, 15 February 2005, and Jabłoński,
cited above, § 83). On the facts, the domestic courts in the
present case should have seriously considered such a possibility not
on 14 August 2002, some two years and two months after the
applicant’s arrest, but much earlier.
The
Court has frequently found a violation of Article 5 § 3 of the
Convention in Russian cases where the domestic courts extended an
applicant’s detention relying essentially on the gravity of the
charges and using stereotyped formulae without addressing specific
facts or considering alternative preventive measures (see
Belevitskiy, cited above, §§ 99 et seq.; Khudobin
v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-XII;
Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1
June 2006; Dolgova, cited above, §§ 38 et seq.;
Khudoyorov, cited above, §§ 172 et seq.,
ECHR 2005-X; Rokhlina, cited above, §§ 63 et
seq.; Panchenko, cited above, §§ 91 et seq.; and
Smirnova v. Russia, nos. 46133/99 and 48183/99, §§
56 et seq., ECHR 2003-IX).
Having regard to the above, the Court considers that
by failing to address specific facts or consider alternative
“preventive measures”, by relying essentially on the
gravity of the charges and, on one occasion, by failing to provide
any grounds at all, the authorities extended the applicant’s
detention without giving “relevant” and “sufficient”
reasons to justify its more than two-year duration. In these
circumstances it is not necessary to examine under Article 5 § 3
of the Convention whether the proceedings were conducted with
“special diligence”.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant also complained about the length of the criminal
proceedings in his case and alleged various defects in the
investigation and trial proceedings. The applicant was further
dissatisfied with his alleged inability to bring appeal proceedings
against the decision of 6 December 2000.
As
regards the length complaint, the Court notes at the outset that the
period to be taken into consideration began on 2 June 2000, when the
investigator brought criminal proceedings in respect of the applicant
(see, among many other authorities, Kalashnikov v. Russia, no.
47095/99, § 124, ECHR 2002 VI), and ended on 4 September
2002 with the judgment of the Military Court of the Tyumen Garrison
(see paragraph 49). It follows that the period to be taken into
consideration lasted for two years, three months and three days. The
Court reiterates in the first place that the reasonableness of the
length of proceedings must be assessed in the light of the
circumstances of the case and with reference to the criteria
established by its case-law, particularly the complexity of the case,
the conduct of the applicant and of the relevant authorities and what
was at stake for the applicant in the dispute (see, amongst many
others, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II).
The
Court considers that the present case was rather complex, involving
two co-accused and several counts of crimes, including fraud, theft,
abuse of power and obstructing the course of justice and the
preliminary investigation. As regards the applicant’s conduct,
there is no indication in the case file that he contributed
noticeably to the length of the criminal proceedings. In so far as
the conduct of the authorities is concerned, the conduct of the
investigation was reasonably fast, ending within just five months. It
is true that there was a period of inactivity in the examination of
the applicant’s case by the trial court between 20 April and 17
December 2001, which was unaccounted for by the respondent
Government. The Court considers that such a delay in the conduct of
the hearing could have been minimised. However, the Court reiterates
that a delay at some stage may be tolerated if the overall duration
of the proceedings cannot be deemed excessive (see, for example,
Pretto and Others v. Italy, 8 December 1983, § 37, Series
A no. 71, and Posedel-Jelinović v. Croatia, no. 35915/02,
§ 26, 24 November 2005).
The foregoing considerations lead the Court to
conclude that the total duration of the proceedings of two years,
three months and three days does not give rise to any appearance of a
violation of the reasonable-time requirement in Article 6 § 1.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
As
to the remaining complaints, the Court notes that the applicant did
not appeal against the trial court judgment (see paragraph 49) or the
decision dated 26 August 2002 (see paragraph 48). It follows that he
failed to exhaust domestic remedies in respect of his grievances
about the alleged deficiencies in the criminal proceedings against
him. His allegation about the inability to bring appeal proceedings
against the decision of 6 December 2000 is unsubstantiated, as it is
clear from the case file that the applicant lodged an appeal against
the decision of 6 December 2000 and that it was examined by the court
on 11 January 2001 (see paragraph 22 and 24).
Overall,
the Court finds that this part of the application is manifestly
ill-founded and should be rejected pursuant to
Article 35 §§ 1 and 4 of the Convention.
IV. 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 complaints concerning the
lawfulness of the applicant’s detention on remand between 31
August 2001 and 14 August 2002 and the length of the applicant’s
detention on remand admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant’s
detention on remand from 31 August 2001 to 14 August 2002;
Holds that there has been a violation of Article
5 § 3 of the Convention on account of the length of the
applicant’s detention on remand.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
