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SAVENKOVA v. RUSSIA - 30930/02 [2010] ECHR 336 (4 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/336.html
Cite as:
[2010] ECHR 336
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FIRST
SECTION
CASE OF SAVENKOVA v. RUSSIA
(Application
no. 30930/02)
JUDGMENT
STRASBOURG
4 March
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 Savenkova 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 9 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30930/02) 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, Ms Tatyana Rafilovna
Savenkova (“the applicant”), on 8 July 2002.
The
applicant was represented by Ms O. Mikhaylova, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P.
Laptev, former Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that his pre-trial detention had
been unlawful and excessively long and that her applications for
release had not been examined speedily.
On
8 June 2005 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 § 3).
The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1958 and lives in Tambov.
The applicant's arrest and pre-trial detention
The
applicant's father and Mrs K. co-owned a cottage in Tambov. The
applicant's father decided to sell his share of the cottage and
authorised the applicant to organise the sale.
On
4 July 2001 Mrs K. was murdered. On the same date Mr Z., who had
carried out certain repair works for the applicant, was arrested by
the police and confessed to the murder. He told the police that the
applicant had instigated the crime and promised him remuneration for
the murder. On the same day the police conducted a search of the
applicant's flat.
The
date and time of the applicant's arrest are disputed between the
parties. According to the applicant, she was arrested at 6 p.m. on 4
July 2001. According to the Government, she was arrested at 2.40 a.m.
on 5 July 2001, the time indicated in the arrest report drawn up by
the investigator and signed by the applicant.
On 6
July 2001 the Prosecutor of the Oktyabrskiy District of Tambov
authorised the applicant's pre-trial detention. The order stated as
follows:
“[Taking into account] the gravity of the crime
committed by [Mrs] Savenkova, and also the fact that at the present
time there are insufficient grounds for bringing charges against her,
the fact that she may abscond from the investigation and fail to
appear at court, commit another crime or interfere with the
establishment of the truth in the criminal case, [the investigator]
has decided to choose with regard to [Mrs] Savenkova Tatyana
Rafailovna ... detention in the Tambov SIZO-1 as a measure of
restraint ...”
On
13 July 2001 the applicant was charged with incitement to murder.
On
6 August 2001 the applicant changed her legal counsel.
On
9 August 2001 the applicant made an application for the measure of
restraint to be changed to an undertaking not to leave her place of
residence. She submitted that her second son, having been injured in
an accident, was in hospital, and her younger daughter of three
needed to be taken care of.
On
22 August 2001 the Oktyabrskiy District Court of Tambov dismissed the
application as follows:
“On 6 July 2001 a measure of restraint was chosen
by the Prosecutor of the Oktyabrskiy District in respect of [Mrs]
Savenkova.
[Mrs] Savenkova requests that the measure of restraint
be changed as she is not guilty, has three children, and her son has
been injured in an accident.
The measure of restraint was chosen lawfully and
reasonably, and took into consideration the gravity of the charges.
Pursuant to Article 220-2 of the [RSFSR] Code of
Criminal Procedure, [the court] has decided to dismiss the complaint.
This decision may be appealed against to the Tambov
Regional Court within seven days.”
The
applicant did not appeal against the decision.
On
29 August 2001 the acting Prosecutor of the Oktyabrskiy District of
Tambov extended the applicant's pre-trial detention to 5 October
2001, referring to the gravity of charges as grounds.
On
2 October 2001 the acting Deputy Prosecutor of the Tambov Region
extended the applicant's pre-trial detention to 4 November 2001,
referring to the gravity of charges and the risk of fleeing justice
and obstructing the investigation.
On
29 October 2001 the acting Deputy Prosecutor of the Tambov Region
extended the applicant's pre-trial detention to 4 December 2001,
referring to the gravity of the charges and the risk of fleeing
justice and obstructing the investigation.
On
4 December 2001 the criminal case file was submitted to the Tambov
Regional Court for examination on the merits.
On
10 December 2001 the applicant's counsel sent a telegram to the
Tambov Regional Court requesting it to terminate the applicant's
prosecution and release her from custody.
On
19 December 2001 the Tambov Regional Court scheduled the first trial
hearing to take place on 4 January 2004 and held that the preventive
measure applied to the applicant, the detention in the Tambov SIZO-1,
“should remain unchanged”.
On
14 March 2002 the Tambov Regional Court found the applicant guilty of
incitement to murder and sentenced her to eight years' imprisonment.
Z. was found guilty of murder and sentenced to twelve years'
imprisonment.
On
14 June 2002 the Supreme Court of the Russian Federation examined and
dismissed an appeal by the applicant. The applicant and Z. were
transferred to correctional facilities to serve their sentences.
On
30 August 2002 the Deputy Prosecutor General, at the applicant's
request, lodged an application for supervisory review of the
judgment.
On
23 October 2002 the Presidium of the Supreme Court of the Russian
Federation granted the request for supervisory review, quashed the
judgment on the grounds of inadequate legal assistance to Z., and
remitted the case to the first-instance court for fresh examination.
The Supreme Court ordered the applicant and Z. to remain in custody.
On
13 November 2002 the case file was transferred to the Tambov Regional
Court. On an unspecified date the applicant and Z. were transferred
to the Tambov SIZO-1 and remained there awaiting the second trial.
On 20 November 2002 the Tambov Regional Court
conducted a hearing of the criminal case where the applicant
allegedly challenged the detention order and requested to be
released. She provided a copy of the application, signed by her
counsel Kh., but claims that the court did not examine it.
According
to the applicant, on 9 December 2002 her lay representative, R.,
lodged another application with the Tambov Regional Court for the
measure of restraint to be changed to an obligation not to leave her
place of residence. According to the Government, this application was
lodged on 20 January 2003.
On
20 January 2003, before the hearing of her case by the Tambov
Regional Court, the applicant's counsel Kh. made an application to
the court challenging the applicant's continued pre-trial detention
and requesting that the measure of restraint be changed to an
undertaking not to leave her place of residence. The application was
examined and dismissed by the Tambov Regional Court with reference to
the gravity of the charges.
On
9 April 2003 the Tambov Regional Court acquitted the applicant and Z.
of all charges because of lack of evidence. They were released in the
court room. The prosecutor appealed against the acquittal.
On
9 June 2003 the Supreme Court of the Russian Federation granted the
prosecutor's appeal, reversed the judgment of 9 April 2003 and
remitted the case for a fresh first-instance examination.
On
19 February 2004 the Tambov Regional Court found the applicant guilty
as charged and sentenced her to eight years' imprisonment. Z. was
sentenced to twelve years' imprisonment. They were taken into custody
from the court room.
On
appeal, on 16 April 2004 the Supreme Court of the Russian Federation
upheld the judgment of 19 February 2004 in substance, but reduced the
applicant's sentence to five years' imprisonment and Z.'s sentence to
nine years' imprisonment.
On
14 January 2005 the Supreme Court of the Russian Federation granted
the applicant's request for the suspension of her imprisonment and
she was released.
II. RELEVANT DOMESTIC LAW
Until 1 July 2002 criminal-law matters were governed
by the Code of Criminal Procedure of the RSFSR (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” (меры пресечения)
include an undertaking not to leave a town or region, personal
security, bail and detention (Article 89 of the old CCrP,
Article 98 of the new CCrP).
B. Authorities ordering detention
The Russian Constitution of 12 December 1993
establishes that a judicial decision is required before a defendant
can be detained or have his or her detention extended (Article 22).
Under
the old CCrP, a decision ordering detention 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 and 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, family status and other
circumstances (Article 91 of the old CCrP, Article 99 of the new
CCrP).
Before 14 March 2001, detention 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
or if they had previously absconded 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 (Articles 97 § 1 and 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
1. Two types of detention
The
Codes distinguished between two types of detention: detention
“pending the investigation”, that is, while a competent
agency – the police or a prosecutor's office –
investigated the case, and detention “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).
Access to the case file materials is to be granted no
later than one month before the expiry of the authorised detention
period (Article 97 of the old CCrP, Article 109 § 5 of the new
CCrP). If the defendant needs more time to study the case file, a
judge, at the request of a prosecutor, may grant an extension of
detention until such time as the file has been read in full and the
case sent for trial (Article 97 of the old CCrP, Article 109 § 8
(1) of the new CCrP). Under the old CCrP, such an extension could not
be granted for longer than six months.
Under the old CCrP, the trial court had the right to
remit the case for an “additional investigation” if it
established that procedural defects existed that could not be
remedied at the trial. In such cases the defendant's detention was
again classified as “pending the investigation” and the
relevant time-limit continued to apply. If, however, the case was
remitted for an additional investigation but the investigators had
already used up all the time authorised for detention “pending
the investigation”, a supervising prosecutor could nevertheless
extend the detention period for one additional month from the date he
received the case. Subsequent extensions could only be granted if the
detention “pending the investigation” had not exceeded
eighteen months (Article 97).
3. Time-limits for detention “before the
court”/“during the trial”
From
the date the prosecutor forwards the case to the trial court, the
defendant's detention is “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 normally 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
a thorough, complete and objective examination of the case, a court
could – of its own motion or on at the request of a prosecutor
– extend the detention by no longer than three months. These
provisions did not apply to defendants charged with a particularly
serious criminal offence.
The new 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 criminal offences, the trial
court may approve one or more extensions of no longer than three
months each (Article 255 §§ 2 and 3).
E. Proceedings to examine the lawfulness of detention
1. During detention “pending the investigation”
Under
the old CCrP, the detainee or his or her counsel or representative
could challenge a detention order issued by a prosecutor, and any
subsequent extension order, before a court. The judge was required to
review the lawfulness of and justification for a detention or
extension order no later than three days after receipt of the
relevant papers. The review had to be conducted in camera in the
presence of a prosecutor and the detainee's counsel or
representative. The detainee had to be summoned and a review in his
absence was only permissible in exceptional circumstances if the
detainee waived his right to be present of his own free will. The
judge could either dismiss the challenge or revoke the pre-trial
detention and order the detainee's release (Article 220-1).
An
appeal to a higher court lay against the judge's decision. It had to
be examined within the same time-limit as appeals against a judgment
on the merits (Article 331 in fine).
Under
the new CCrP, an appeal may be lodged with a higher court within
three days of a judicial decision ordering or extending detention on
remand. The appeal court must decide the appeal within three days of
its receipt (Article 108 § 10).
2. During the trial
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 222 § 5 and 230
of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new
CCrP) and rule on any application by the defendant for release
(Article 223 of the old CCrP). If the application is refused, a fresh
application can be made once the trial has commenced (Article 223 of
the old CCrP).
At
any time during the trial the court may order, vary or revoke any
preventive measure, including detention (Article 260 of the old CCrP,
Article 255 § 1 of the new CCrP). Any such decision must be
given in the deliberations room and be signed by all the judges of
the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
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 a judgment on the merits (Article 331 of the old CCrP,
Article 255 § 4 of the new CCrP).
F. Time-limits for trial
Under the old CCrP, within fourteen days of receipt of
the case file (if the defendant was in custody), the judge was
required either: (1) to fix the trial date; (2) to return the case
for an additional investigation; (3) to stay or discontinue the
proceedings; or (4) to refer the case to a court with jurisdiction to
hear it (Article 221). The new CCrP empowers the judge, within the
same time-limit, (1) to refer the case to a competent court; (2) to
fix a date for a preliminary hearing (предварительное
слушание); or (3)
to fix a date for trial (Article 227). The trial must begin no later
than fourteen days after the judge has fixed the trial date (Article
239 of the old CCrP, Article 233 § 1 of the new CCrP). There are
no restrictions on fixing the date of a preliminary hearing.
The
duration of the trial is not limited.
Under the old CCrP, the appeal court was required to
examine an appeal against the first-instance judgment within ten days
of its receipt. In exceptional circumstances or in complex cases, or
in proceedings before the Supreme Court, this time-limit could be
extended by up to two months (Article 333). No further extensions
were possible.
The
new CCrP establishes that the appeal court must start the examination
of the appeal no later than one month after its receipt
(Article 374).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE
CONVENTION
The
applicant complained under Article 5 § 1 (c) of the Convention
that her detention had been unlawful. The relevant parts of Article 5
provide:
“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. Submissions by the parties
The
Government argued that the applicant's detention had been lawful and
had complied with the requirements of Article 5 § 1 of the
Convention. It had been duly authorised and was justified not only by
the gravity of the charges but also the likelihood that the applicant
would flee, commit another crime or obstruct the course of justice.
They further submitted that the applicant had not exhausted domestic
remedies as regarded her detention before 14 March 2002. In
particular, she had not appealed against the decision of the
Oktyabrskiy District Court of Tambov of 22 August 2001, or the
subsequent extensions by the prosecutor's office, and she had not
made any requests for release while the case was being examined by
the court. Between 14 March 2002 and 23 October 2002 the applicant
had been serving her sentence in accordance with the judgment of the
Tambov Regional Court. On the latter date the Presidium of the
Supreme Court had quashed the judgment in supervisory review
proceedings and remitted the case for fresh examination by the
fist-instance court. It had also ordered the applicant's detention
pending a new trial; since the scope of the new trial was supposed to
be based on the same facts, the grounds for the applicant's detention
were, by implication, the same as during the first set of
proceedings. For this reason the Presidium was absolved from stating
any reasons for her detention. After 13 November 2002, when the case
file had been transferred to the Tambov Regional Court, the
applicant's detention had been covered by Article 255 of the new CCrP
and had not required the court's authorisation because the
supervisory instance had already authorised it. The length of the
detention between 23 October 2002 and 9 April 2004, when the
applicant had been acquitted and released, had not exceeded the
statutory limit of 18 months and had been reasonable.
The
applicant disagreed with the Government's position. Contesting their
objection as to the non-exhaustion of domestic remedies as regarded
the period between 4 July 2001 and 14 March 2002, she claimed that on
10 December 2001 she had complained about her detention to the
Tambov Regional Court, but that the complaint had not been examined.
Instead, on 19 December 2001, the court had ordered her
detention to continue. She maintained that her detention had been
neither lawful nor justified throughout the proceedings.
B. The Court's assessment
1. Admissibility
The Court observes that the applicant's complaints
refer to her initial arrest on 4-5 July 2001, her pre-trial detention
between 6 July 2001 and 4 December 2001, and also the period of
detention after the transfer of the case file to the court which
ended with the applicant's conviction on 14 March 2002 (the
first set of proceedings); further complaints relate to her detention
between 23 October 2002, when the case was remitted for fresh
examination following the supervisory review, and 9 April 2003 when
she was acquitted (the second set of proceedings). As regards the
first set of proceedings, the Court notes that the last decision
concerning the lawfulness of the applicant's detention during that
period was taken by the Tambov Regional Court on 19 December 2001,
that is, more than six months before 8 July 2002, when the applicant
lodged her application with the Court. Accordingly this part of the
application has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention
(see Salmanov v. Russia (dec.), no. 3522/04, 19 January 2006;
Korchuganova v. Russia, no. 75039/01, § 44, 8 June 2006;
Pavlík v. Slovakia, no. 74827/01, § 89, 30 January
2007; and Ignatov v. Russia, no. 27193/02, § 71, 24
May 2007).
The
Court further observes that it has competence to examine the
applicant's complaint relating to the second set of proceedings. The
Court notes that it 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.
2. Merits
(a) General principles
The Court reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 essentially refer to national law and state the
obligation to conform to the substantive and procedural rules
thereof. However, the “lawfulness” of detention under
domestic law is not always the decisive element. The Court must in
addition be satisfied that detention during the period under
consideration was compatible with the purpose of Article 5 § 1
of the Convention, which is to prevent persons from being deprived of
their liberty in an arbitrary fashion.
The
Court must moreover ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied.
It is therefore essential that the conditions for deprivation of
liberty under domestic law be clearly defined and that the law itself
be foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see Ječius v. Lithuania, no.
34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) Application of the general principles
to the present case
The
Court notes that on 23 October 2002 the Presidium of the Supreme
Court of the Russian Federation quashed the judgment by which the
applicant had been convicted, and ordered that she should remain in
custody while the case was re-examined. On 20 January 2003 the Tambov
Regional Court dismissed the applicant's application for release.
The
Court observes that the Presidium of the Supreme Court gave no
reasons for its decision to remand the applicant in custody. Nor did
it set a time-limit for the continued detention or for a periodic
review of the preventive measure. The Tambov Regional Court, having
received the case file on 13 November 2002, did not re-examine the
detention matter. The Government argued that it was not incumbent on
the Presidium of the Supreme Court or the Tambov Regional Court to
justify the detention order, provided that her detention did not
exceed the statutory limit of eighteen months, since the charges
against the applicant remained the same as in the previous set of
proceedings.
The Court has already found violations of Article 5 §
1 (c) of the Convention in a number of cases against Russia
concerning a similar set of facts (see, for example, Solovyev v.
Russia, no. 2708/02, §§ 95-100, 24 May 2007; Shukhardin
v. Russia, no. 65734/01, §§ 65-70, 28 June 2007; and
Belov v. Russia, no. 22053/02, §§ 79-82, 3 July
2008). In particular, the Court has held that the absence of any
grounds given by judicial authorities in their decisions authorising
detention for a prolonged period of time is incompatible with the
principle of protection from arbitrariness enshrined in Article 5 §
1 (see also Nakhmanovich v. Russia, no. 55669/00, §§
70-71, 2 March 2006, and Stašaitis v. Lithuania,
no. 47679/99, § 67, 21 March 2002). Permitting a prisoner to
languish in detention without a judicial decision based on concrete
grounds and without setting a specific time-limit would be tantamount
to overriding Article 5, 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 Khudoyorov v. Russia, no. 6847/02, § 142, ECHR
2005-X).
The
Court sees no reason to reach a different conclusion in the present
case. It considers that the decision of 23 October 2002 did not
comply with the requirements of clarity, foreseeability and
protection from arbitrariness which together constitute the essential
elements of “lawfulness” of detention within the meaning
of Article 5 § 1.
The
Court therefore considers that there has been a violation of
Article 5 § 1 (c) of the Convention on account of the
applicant's detention from 23 October 2002 to 9 April 2003.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that her pre-trial detention had been
excessively long and that it had been repeatedly extended without any
indication of relevant and sufficient reasons. She relied on Article
5 § 3 of the Convention, which provides:
“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.”
A. Submissions by the parties
The
Government submitted that the length of the applicant's detention
during the investigation and judicial proceedings had not been
excessive. The time-limits provided for by the domestic law had not
been exceeded, and her detention was necessary in view of the gravity
of charges and the likelihood of her fleeing or obstructing the
course of justice.
The
applicant maintained her complaints.
B. The Court's assessment
1. Admissibility
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.
2. Merits
(a) General principles
Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty
(see, among other authorities, W. v. Switzerland, 26 January
1993, Series A no. 254 A, and Kudła v. Poland [GC],
no. 30210/96, § 110, ECHR 2000 XI).
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 him to be released provisionally once his continuing
detention ceases to be reasonable (see Vlasov v. Russia, no.
78146/01, § 104, 12 June 2008, with further references).
The
Court further observes that it falls in the first place to the
national judicial authorities to ensure that, in a given case, the
pre-trial detention of an accused person does not exceed a reasonable
length of time. To this end they 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 set them out in their decisions dismissing
the applications for release. It is essentially on the basis of the
reasons given in these decisions and of the facts submitted 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 Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000 IV).
The
arguments for and against release must not be “general and
abstract” (see Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a
presumption in respect of factors relevant to the grounds for
continued detention, the existence of the specific facts outweighing
the rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84
in fine, 26 July 2001).
The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but 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 continue
to justify the deprivation of liberty. Where such grounds are
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita, cited above, § 153).
(b) Application of the general principles
to the present case
(i) Period to be taken into consideration
The Court reiterates that, in determining the length
of detention pending trial under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the
day the accused is taken into custody and ends on the day when the
charge is determined, even if only by a court of first instance (see
Panchenko v. Russia, no. 45100/98, § 91, 8 February 2005;
Klyakhin v. Russia, no. 46082/99, § 57, 30 November 2004;
and Labita, cited above, §§ 145 and 147).
The
Court notes that the date and time of the applicant's initial arrest
is disputed by the parties; however, the Court considers a difference
of several hours immaterial for the purposes of assessing the length
of the period at issue in the present case. It will assume that the
applicant was taken into custody no later than on 5 July 2001, on
which date the applicant was already in detention according to both
parties. From that point on the applicant was detained within the
meaning of Article 5 § 3 of the Convention until her conviction
by the Tambov Regional Court on 14 March 2002. From the latter
date until 23 October 2002, when the Presidium of the Supreme Court
quashed the judgment of 14 March 2002, she was detained “after
conviction by a competent court”, within the meaning of Article
5 § 1 (a), and therefore that period of detention falls outside
the scope of Article 5 § 3 (see B. v Austria, 28 March
1990, §§ 33 39, Series A no. 175, and Kudła,
cited above, § 104). From 23 October 2002 to 9 April 2003
she was again in pre-trial detention falling under Article 5 § 3
of the Convention.
In order to assess the length of the applicant's
pre-trial detention, the Court must make an overall evaluation of the
accumulated periods of detention under Article 5 § 3 of the
Convention (see, as recent authorities, Belov, cited above, §
102; Mishketkul and Others v. Russia, no. 36911/02,
§ 40, 24 May 2007; and Solmaz v. Turkey, no.
27561/02, §§ 34-37, ECHR 2007-... (extracts)).
Consequently, having added together the two aforementioned periods,
the Court concludes that the applicant was detained within the
meaning of Article 5 § 3 of the Convention for one year, one
month and twenty-five days.
(ii) Grounds for the continued detention
The
Court notes that the Government, with reference to the detention
orders issued in this case, advanced three principal reasons for the
applicant to remain in detention, namely, the serious nature of the
offence, which carried a prison sentence of significant length, the
fact that the applicant would be likely to abscond, and the risk of
her obstructing the course of justice.
The
Court notes that the applicant's detention could initially have been
warranted by these considerations. However, the Court reiterates in
this respect that the authorities cannot justify continuing detention
by a mere reference to such risks; they must refer to specific facts
concerning the applicant's behaviour, his personal circumstances, and
so on (see Vlasov, cited above, § 108). 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).
In
the present case the domestic authorities did not refer to any
concrete facts and did not indicate any circumstance which suggested
that, if released, the applicant would abscond or otherwise upset the
course of the trial. Even if the domestic authorities were aware of
any such matters, none were mentioned in the decisions concerning
detention and it is not the Court's task to establish such matters
and take the place of the national authorities who ruled on the issue
of detention (see Korchuganova v. Russia, no. 75039/01, §
72, 8 June 2006). The Court therefore finds that the existence of
such risks was not established.
The
Court also notes that with the passing of time the courts' reasoning
did not evolve to reflect the developing situation or to verify
whether these grounds remained valid at the advanced stages of the
proceedings. On the contrary, from 4 December 2001 to 19 December
2001 the detention continued automatically, without any detention
order, and the judicial decision taken on the latter date gave no
reasons, nor did it state any time-limits, thus implying that the
applicant would remain in detention until the end of the trial. The
detention order issued on 23 October 2002 by the Presidium of the
Supreme Court also dispensed with indicating any reasons or
time-limits for the detention. The decision taken by the Tambov
Regional Court on 20 January 2003 dismissing the applicant's request
for release, however, referred clearly to the gravity of the charges.
The
Court cannot accept the Government's argument that there had been no
need for the courts to state reasons for the detention since these
remained, by implication, the same as those indicated in the earlier
orders, and that the time-limits were in any event set by law. The
Court reiterates that the authorities' obligation to set out their
reasons for maintaining the detention as a “preventive measure”
takes on even greater importance at the later stages of proceedings
(see, among other authorities, Bykov v. Russia [GC] no.
4378/02, §§ 61-64, 10 March 2009). In the present case, the
judicial instances could not dispense with verification of the
grounds for the applicant's detention precisely because the risks
referred to in the previous detention orders, in particular that the
applicant would obstruct the course of justice, were likely to have
diminished at the advanced stages of the proceedings, especially at
the stage of supervisory review.
The Court further emphasises that when deciding
whether a person should be released or detained the authorities have
an obligation under Article 5 § 3 to consider alternative
measures of ensuring his or her appearance at the trial (see Sulaoja
v. Estonia, no. 55939/00, § 64, 15 February 2005,
and Jabłoński v. Poland, no. 33492/96, § 83,
21 December 2000). At no time during the entire period under
consideration did the authorities consider the possibility of
ensuring the applicant's attendance by the use of one of the other
“preventive measures” – such as a written
undertaking or bail – which are expressly provided for by
Russian law to secure the proper conduct of criminal proceedings.
Their failure to do is made all the more inexplicable by the fact
that from 1 July 2002 the new Code of Criminal Procedure expressly
required the domestic courts to consider less restrictive measures as
an alternative to custody.
In sum, the Court finds that the domestic authorities'
decisions were not based on an analysis of all the pertinent facts.
They took no account of the arguments in favour of the applicant's
release pending trial. The Court therefore finds that the authorities
failed to adduce relevant and sufficient reasons to justify extending
the applicant's detention pending trial to one year, one month and
twenty-five days.
There has therefore been a violation of Article 5 §
3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant further complained that the courts had not examined
“speedily” the applications for release she had lodged in
the period between 4 September 2001 and 14 March 2002, or her
applications for release lodged on 20 November 2002 and 9 December
2002. She relied on Article 5 § 4 of the Convention, which
provides:
“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.”
A. Submissions by the parties
The
Government submitted that the applicant had not exhausted domestic
remedies as regarded the period of her detention which ended on 14
March 2002. They pointed out that her only application for release in
this period was dismissed on 22 August 2001, and the applicant did
not lodge an appeal against that decision. As to her complaint about
the delay in the examination of her request of 9 December 2002, they
contested the date on which the request had been lodged with the
court. According to the Government, the copy of the request submitted
by the applicant did not indicate any date and had been made by the
applicant at the court hearing on 20 January 2003, where it had been
immediately examined.
The
applicant maintained her complaints. In reply to the Government's
allegation that no request had been submitted by her on 9 December
2002, she provided a copy of that request, endorsed and signed by the
recipient, allegedly a court official, on that date. She claimed that
this application had been ignored, as had her earlier application
lodged on 20 November 2002
B. The Court's assessment
1. Admissibility
The
Court notes the Government's objection as to the exhaustion of
domestic remedies in relation to the first period of her pre-trial
detention, that is, before 14 March 2002. It notes that the applicant
claimed that she had lodged an application for release by sending a
cable to the Tambov Regional Court on 10 December 2001. It observes,
however, that following this request, on 19 December 2001 the court
took a decision authorising the applicant's further detention. As the
Court found above (see paragraph 62), this was the last decision
concerning the lawfulness of the applicant's detention during the
first set of proceedings and it was taken more than six months before
the applicant lodged her application with the Court. Accordingly, the
Court has competence to examine only the complaint related to the
release application which was determined on 20 January 2003.
The
Court notes that the latter 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.
2. Merits
(a) General principles
The Court reiterates that Article 5 § 4, in
guaranteeing to persons arrested or detained the right to take
proceedings to challenge the lawfulness of their detention, also
proclaims their right, following the institution of such proceedings,
to a speedy judicial decision on the lawfulness of the detention and
the ordering of its termination if it proves unlawful. Although it
does not compel the Contracting States to set up a second level of
jurisdiction for the examination of the lawfulness of detention, a
State which institutes such a system must in principle accord to
detainees the same guarantees on appeal as at first instance (see
Navarra v. France, 23 November 1993, § 28, Series A no.
273-B, and Toth v. Austria, 12 December 1991, § 84,
Series A no. 224). The requirement that a decision be given
“speedily” is undeniably one such guarantee and Article 5
§ 4, concerning issues of liberty, requires particular
expedition (see Hutchison Reid v. the United Kingdom, no.
50272/99, § 79, ECHR 2003-IV). In that context, the Court also
observes that there is a special need for a swift decision
determining the lawfulness of detention in cases where a trial is
pending, because the defendant should benefit fully from the
principle of the presumption of innocence (see Iłowiecki v.
Poland, no. 27504/95, § 76, 4 October 2001).
(b) Application of the general principles
to the present case
The Court observes that the Government did not comment
on the applicant's allegation that counsel Kh. had lodged an
application for release on 20 November 2002, but they contested the
one allegedly filed by lay representative R. on 9 December 2002.
According to the Government, the latter application was lodged on 20
January 2003 and it was examined on the same day. The Court notes
that the case file contains copies of two applications by counsel
Kh.: one of 20 November 2002 and another one of 20 January 2003. It
observes, next, that the Tambov Regional Court referred in its
decision of 20 January 2003 to “an application by lay
representative R. and counsel Kh.” without specifying when the
application had been lodged. The Court, further, observes that the
copy of the application signed by R. did not indicate a date, but
contained an endorsement that it had been “received on 9
December 2002”. The Court accepts that the signature of the
recipient was that of a court official because the Government did not
challenge the validity or the origin of the endorsement. In view of
the foregoing, the Court finds it to be established that three
applications for release were lodged on the applicant's behalf: on 20
November 2002 by counsel Kh., on 9 December 2002 by lay
representative R. and on 20 January 2003 by counsel Kh.
As
indicated above (see paragraph 97), it is not clear from the Tambov
Regional Court's decision whether it examined all of these
applications on 20 January 2003, or only two of them. The latter case
would mean that one of the applications by counsel Kh. was left
unexamined. However, the Court does not need to resolve the doubt
because even assuming that all three applications were examined, this
was done two months after the lodging of the application of 20
November 2002 and one month and eleven days after the lodging of that
of 9 December 2002. There is nothing to suggest that the applicant
had caused any delays in the examination of the applications. The
Court considers that the impugned periods cannot be considered
compatible with the “speediness” requirement of Article 5
§ 4, especially taking into account that their entire duration
was attributable to the authorities (see, for example, Mamedova v.
Russia, no. 7064/05, § 96, 1 June 2006; Khudoyorov,
cited above, §§ 198 and 203; and Rehbock v. Slovenia,
no. 29462/95, §§ 85 and 86, ECHR 2000-XII, where review
proceedings which lasted twenty-three days were found not to have
been “speedy”).
The
Court also observes that the fact that the applicant was found guilty
of a criminal offence and that the duration of her pre-trial
detention counted towards her sentence cannot in principle justify
the failure to examine speedily her applications for release (see
Bednov v. Russia, no. 21153/02, § 33, 1 June 2006).
There
has therefore been a violation of Article 5 § 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court's competence, it
finds that they do not disclose any appearance of a violation of the
rights and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
V. 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 her any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning the
unlawfulness of the applicant's detention from 23 October 2002 to
9 April 2003, the excessive length of her detention and the
failure of the domestic authorities to decide “speedily”
on the lawfulness of her detention ordered on 23 October 2002
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of
Article 5 § 1 (c) of the Convention;
Holds that there has been a violation of
Article 5 § 3 of the Convention;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that that there is no call to award the
applicant just satisfaction.
Done in English, and notified in writing on 4 March 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
