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YURIY YAKOVLEV v. RUSSIA - 5453/08 [2010] ECHR 643 (29 April 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/643.html
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[2010] ECHR 643
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FIRST
SECTION
CASE OF YURIY YAKOVLEV v. RUSSIA
(Application
no. 5453/08)
JUDGMENT
STRASBOURG
29 April
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 Yakovlev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 30 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 5453/08) 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 Yuriy Yevgenyevich
Yakovlev (“the applicant”), on 11 December 2007.
The
applicant was represented by Mr S. Antonov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant complained, in particular, that the length of his detention
was excessive.
On
5 June 2009 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). Further to the applicant's request, the Court
granted priority to the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1951 and lived in Moscow until his arrest.
A. Applicant's arrest and authorisation of his
detention
On
10 November 2006 the Prosecutor General's office instituted criminal
proceedings on charges of aggravated bribery and abuse of position
against a number of officials of the Federal Mandatory Health
Insurance Fund (“the Fund”), including the applicant. The
latter was employed as the first deputy director of the Fund until
August 2006, when he resigned.
The
applicant was not arrested, as on 24 November 2006 he gave a written
undertaking to comply with investigators' orders and summons. During
the subsequent eight months he fully complied with the written
undertaking and actively participated in the criminal investigation,
attending investigative actions whenever summoned by the Prosecutor
General's office (at least fifteen times in eight months).
On 2 July 2007 the deputy head of the Trade Security
Service of the Federal Security Service (“the FSB”),
lieutenant-general V., sent a letter to a senior investigator of the
Prosecutor General's Office responsible for the applicant's criminal
case. The relevant part of the letter read as follows:
“[We] have received information that the former
first deputy director of the Fund, [the applicant], if informed that
documents [for his arrest] are being prepared, will take steps
similar to those [taken] in November 2006 when he, having used his
extensive connections in medical institutions, admitted himself to a
hospital for inpatient treatment.
Furthermore, according to the received information [the
applicant], being a very cautious person and responding to all
summons by the investigator, at the same time takes measures to
pervert the investigation by inciting individuals who have
information about his criminal activities to distort that
information.
This is just to inform you.”
On
the following day, at approximately 2.30 p.m., the applicant was
arrested. A record of the arrest, in so far as relevant, read as
follows:
“It is suspected that [the applicant] in 2005
[and] 2006, having acted as the first deputy director of [the Fund]
in Moscow together with an organised group and using his official
position, had received bribes in large amounts from heads of regional
mandatory medical insurance funds and representatives of
pharmaceutical companies in exchange for provision of resources from
the fixed insurance reserve of the Federal Fund and insurance funds
set aside to supply citizens with medicines..., that is [the
applicant is suspected] of a criminal offence proscribed by Article
290 § 4 (a) [and] (d) of the Russian Criminal Code.
...
In respect of his arrest [the applicant] stated: there
are no grounds for the arrest; [I] did not attempt to abscond from
the investigation; [I] did not try to prevent the establishment of
the truth in the case; [I] did not make attempts to influence the
participants in the proceedings or to destroy evidence; [I] did not
commit any crime while at liberty. [I] have a permanent place of
residence in Moscow.
The lawyer adds that [the applicant] is in a poor state
of health.”
The
applicant's lawyer present during the arrest made a handwritten note
in the arrest record, insisting on an immediate medical examination
of the applicant, arguing that the latter was suffering from a number
of serious illnesses, felt ill during the arrest and could not
adequately respond to the investigator's actions.
On
3 July 2007 the applicant was brought before a judge of the Basmanniy
District Court of Moscow. The applicant's lawyer applied for an
adjournment, arguing that he had had no time to study materials
presented by the investigative authorities in support of their
request for the applicant's arrest. The District Court dismissed the
lawyer's request, noting that the criminal procedural law did not
allow an adjournment on the grounds cited by the applicant's lawyer,
and authorised the applicant's detention until 6 p.m. on 4 July
2007. The District Court stressed that the applicant's lawyers should
use that time to prepare their arguments in defence. The decision was
amenable to appeal, however, no appeal followed.
On 4 July 2007 the Basmanniy District Court remanded
the applicant in custody, holding as follows:
“As it follows from the case file materials, in
2005, in Moscow, [the applicant] acting as a public official –
the first deputy director of the Federal Fund... entrusted with
organisational [and] regulatory functions within the financial credit
entity, on mercenary grounds for personal benefit and by way of
receiving large sums in bribes for actions in the interests of
regional funds of mandatory medical insurance, pharmaceutical and
other entities which participate in medical insurance programmes and
supplies of medicines and equipment for medical prophylactic entities
of the Russian Federation, organised, with the director of the
Federal Fund, Mr T., and a deputy director of the Federal Fund, Ms K.
a stable organised criminal group which [a number of other officials
of the Fund] joined.
According to the division of roles [the applicant], Ms
K. and Mr T. were in charge of criminal activities [and] arranged
agreements with heads and representatives of the regional funds,
pharmaceutical and other entities according to which requests from
those funds were to be approved in return for large sums of money,
representing a certain percent of a subvention sum given to them or
their intermediaries.
When the Federal Fund received requests from regional
funds with which indicated agreements had been reached, [the
applicant], Mr T. and Ms K., abusing their official position,
personally indicated, in drafts of documents prepared for provision
of subventions upon the received requests, the amount of a subvention
which had to be paid to the regional funds.
Following subsequent examination of the requests in the
Federal Fund, [the applicant], being a member of the “Commission
of the Federal Fund...”, ensured, by agreement with other
participants of the crimes, the successful examination of [the
requests].
When money was received as bribes, [the applicant], Ms
K. and Mr T. divided it between members of the organised [criminal]
group.
...
In 2005-06, having [organised the criminal group] to
commit crimes together and having divided roles between them, the
above-mentioned persons, abusing their official positions, received
bribes of more than twelve million roubles from officials of regional
funds, representatives of pharmaceutical and other legal entities,
which were interested in regularly receiving subventions from the
centralised resources of the Federal Fund, [the bribes] were divided
between the members of the organised group.
...
In 2005-06 Ms K., in her office in Moscow..., on a
number of occasions received in total 1,500,000 roubles from a Mr K.
as a bribe. That sum was divided between Mr T., Ms K., [the
applicant]...
On 24 November 2006 a senior investigator of the
Prosecutor General's office... received the criminal case file and on
the same day a measure of restraint in the form of a written
undertaking to attend [investigative arrangements] was chosen in
respect of [the applicant].
On 3 July 2007, at 2.27 p.m., [the applicant] was
arrested in compliance with the requirements of Articles 91 and 92 of
the Russian Code of Criminal Procedure as a person suspected of an
offence under Article 290 § 4 (a), (d) of the Russian Criminal
Code and on 4 July 2007, at 11.20 a.m., he was questioned in that
capacity.
...
The investigating authorities ask for an authorisation
of [the applicant's] detention, asserting that other measures of
restraint... would not correspond to the interests of the
investigation.
...
[The applicant's] lawyer stated that [the applicant's]
poor state of health does not permit him to be detained.
[The applicant] has no intention of absconding from the
investigation or trial, [he] is a Russian citizen, he is registered
in Moscow, [he] is at the pre-retirement stage, [he] is a law-abiding
citizen and he presented himself to the Prosecutor General's office
whenever summoned, [he] is only characterised positively, that is why
he asks the court to dismiss the investigator's request for his
arrest and to apply another measure of restraint, in the form of
bail.
...
Having examined and analysed the presented materials,
the court considers that the application for the arrest should be
accepted for the following reasons.
The criminal case was opened by the competent official
on the basis of sufficient reasons. [The applicant] was arrested in
accordance with the requirements of Articles 91 and 92 of the
Russian Code of Criminal Procedure.
The [arrest] application is drawn up in accordance with
criminal procedural norms and is presented to the court on an order
from the competent prosecutor within the time-limit established by
law. The materials presented to the court attest to the fact that
[the applicant] was arrested lawfully on suspicion of a criminal
offence.
While examining the issue of the application of the
measure of restraint in the form of detention the court takes into
account that [the applicant] is suspected of a crime which the law
defines as a particularly serious [criminal offence]. If released,
[the applicant] may continue with criminal activities, may abscond
from the investigation and trial, may negatively influence
prosecution witnesses and other participants in the criminal
proceedings, may try to contact his accomplices who are on the run
and may destroy or falsify evidence in the case.
Moreover, having connections in the law enforcement and
other State bodies, [the applicant] may obstruct the identification
and retrieval of [other] accomplices, thus influencing the
lawfulness, objectivity and thoroughness of the criminal
investigation.
According to the information provided by the head of the
FSB Department on 2 July 2007, [the applicant] is now taking steps to
obstruct the investigation by persuading persons who possess
information pertaining to his criminal activities to distort the
facts, and he is also liable to [take] other steps to avoid criminal
responsibility.
The court has no reason not to trust that information.
As follows from the materials presented by the
investigator, [the applicant] has not yet been served with the final
bill of indictment, for objective reasons.
At the same time, the criminal investigation authorities
suspect [the applicant] of a criminal offence established by Article
290 § 4 (a), (d) of the Russian Criminal Code, which the law
places in the category of particularly serious [criminal offences],
punishable by seven to twelve years' imprisonment, and [the
applicant] acquired the status of a suspect as a result of evidence
collected by the investigation in the case:
- video and audio recordings, which were made during
operational technical arrangements in 2005-2006, where statements
about bribe-taking by the above-mentioned persons, made by
representatives of the regional funds and pharmaceutical companies,
were recorded, and statements about the distribution of money
received as bribes [were also recorded].;
- documents discovered in the above-mentioned persons'
offices;
- search records in the places of residence of the
accused, including the applicant, as a result of which large sums of
money were found;
- statements by a witness, Mr K., who confirmed his
statements during a confrontation interview with Ms K.; documents
given by [Mr K.] to the investigation authorities;
- initial statements by an accused, Mr T., who confirmed
that he, [the applicant] and other employees of the Fund, had
received money from Mr K. as bribes;
- statements by Mr Ku., who claimed that, while working
in the Federal Fund as the head of the administrative service
division, in 2006, on a number of occasions he had received various
sums of money from Ms K. Mr Ku. confirmed his statements during a
confrontation interview with Ms K. During the investigation Mr Ku.
voluntarily handed over unlawfully obtained sums;
- statements by two of the accused, Ms M. and Ms F., who
described the circumstances in which in 2005-06 they had received
bribes from representatives of the regional funds and pharmaceutical
companies, and who knew that part of the money received had been
given to [the applicant]. In the course of the investigation Ms M.
and Ms F. voluntarily handed over to the investigators unlawfully
obtained money;
- statements by a number of representatives of the
regional funds and pharmaceutical companies who described
circumstances in which they had had to bribe officials of the Federal
Fund.
Having regard to the particular circumstances of the
case, the character and gravity of the criminal offence, and the
information pertaining to [the applicant's] personality, the court
considers that the application for an authorisation of the arrest is
lawful and well-founded and should be accepted.
While determining the issue of the need or otherwise to
apply a measure of restraint such as arrest to [the applicant], the
court also takes into account his family and welfare situation; [he]
is married but does not have a minor child or any other close
relatives who are in need of material assistance or additional care,
he has never been registered in a drug abuse clinic or a psychiatric
hospital, and his state of health allows him to take part in judicial
and investigative actions and to be detained in a temporary detention
facility (there is a medical certificate in the case file).”
The
applicant and his lawyers appealed, arguing that there were no
grounds to conclude that the applicant was liable to abscond or
pervert the course of justice. They indicated that for more than
eight months the applicant had fully complied with the conditions of
the written undertaking. According to the lawyers, the applicant's
family and personal situation, including his age and poor state of
health, were calling for his release. They also pointed out that the
information provided to the District Court by the deputy head of the
FSB Trade Security Service was no more than a collection of
assumptions, not supported by any evidence. The lawyers cited a
decision of the Supreme Court of the Russian Federation, according to
which the gravity of the charges could not serve as the sole ground
for an authorisation or extension of the accused's detention. They
stated that in the absence of any other valid reasons the District
Court had thus unlawfully based its decision on the gravity of the
charges against the applicant.
On
6 August 2007 the Moscow City Court upheld the decision of 4 July
2007, endorsing the reasons given by the District Court.
B. Detention order of 3 September 2007 (extension of
the applicant's detention until 10 November 2007)
On
3 September 2007 the Basmanniy District Court extended the
applicant's detention until 10 November 2007, reasoning as follows:
“The court considers the arguments laid down in
the application for an extension of the accused's detention
well-founded, because it is impossible to finish the pre-trial
investigation in the criminal case within the established time-limits
as it is necessary to perform a number of investigative procedural
actions, indicated in the decision.
[The applicant] is charged with a particularly serious
criminal offence which is punishable by more than two years'
imprisonment.
It follows from the investigator's decision and the
materials presented that [the applicant] is charged with a crime as
part of an organised group, certain participants of which are now
being identified by the investigation authorities.
The presented materials indicate that [the applicant]
has a passport for travel. In the course of the operational search
arrangements information was received that [the applicant] had taken
steps to pervert the course of the investigation by trying to
persuade certain individuals to make statements beneficial to [the
applicant].
The circumstances of the crime and the above-mentioned
data serve as sufficient grounds to conclude that if released [the
applicant] may abscond from the investigation and trial, may contact
other persons in respect of whom investigative and operational search
measures are being taken, and may influence witnesses, thus [he] will
pervert the course of the investigation in the criminal case.
Having regard to the above said, the court finds that at
the present moment the grounds and circumstances to be taken into
account while applying a measure of restraint in the form of the
arrest under Articles 97, 99 of the Russian Code of Criminal
Procedure had not changed, and it is still necessary to preserve the
above-mentioned measure of restraint.
While examining the issue of extension of [the
applicant's] detention, the court takes into account his age, family
situation and state of health.
Having assessed the amount of investigative actions
which the investigative authorities have to perform, the court
considers that the period for which the investigator asks [for the
detention to be extended] is reasonable.”
On
7 November 2007 the Moscow City Court upheld the extension order,
finding that the District Court's conclusions were lawful and
well-founded.
C. Detention order of 30 October 2007 (extension of
detention until 10 February 2008)
On
30 October 2007 the Basmanniy District Court, by a decision worded
similarly to the one issued on 3 September 2007, authorised a further
extension of the applicant's detention, this time until 10 February
2008.
On
10 December 2007 the Moscow City Court upheld the detention order,
confirming that the gravity of the charges against the applicant, his
liability to abscond, pervert the course of the investigation and
trial had been rightfully listed by the District Court as grounds
authorising a further extension of the applicant's detention.
On 25 December 2007 the pre-trial investigation ended
and two days later the applicant and his lawyers began studying the
case file.
D. Detention order of 7 February 2008 (extension until
10 May 2008)
At
the end of January 2008 an investigator of the Prosecutor General's
office lodged an application with the Basmanniy District Court
seeking an extension of the applicant's detention for an additional
three months. The investigator reasoned that the criminal case was
particularly complex, the case file comprised eighty-nine volumes and
additional time was necessary for eleven co-defendants and their
twenty lawyers to study the file. He further submitted that the
applicant was liable to abscond and pervert the course of the
investigation by destroying evidence.
The
applicant's lawyers lodged a counter-claim, asking for the
applicant's release. They claimed that it was no longer necessary to
hold the applicant in custody, as the criminal investigation had
ended, the evidence had been collected and the necessity to study the
case file did not require the applicant's further detention. The
lawyers also invoked the applicant's personal circumstances calling
for his release: his age, very poor state of health, his permanent
place of residence in Moscow and his law-abiding behaviour for more
than a year since the criminal proceedings against him had been
initiated.
On
7 February 2008 the Basmanniy District Court, having examined the
investigator's application and the arguments of the defence in reply,
extended the applicant's detention for an additional three months,
until 10 May 2008. The District Court invoked the necessity for
the applicant and his lawyers to study the voluminous case file as
the main ground for the extension. It further relied on the gravity
of the charges, “the circumstances of the crime, the
information on [the applicant's] personality, including his official
position” as the evidence of the applicant's liability to
abscond and influence witnesses and other participants of the
criminal proceedings. In conclusion, the District Court noted that it
had taken into account the applicant's age, family situation, his
state of health and the fact that he permanently resided in Moscow.
However, the reasons for the extension outweighed those
considerations.
On
19 March 2008 the Moscow City Court dismissed the applicant's and his
lawyers' appeal against the decision of 7 February 2008, finding that
the District Court had thoroughly examined the circumstances of the
case and had drawn the correct conclusions.
E. Detention order of 5 May 2008 (extension until
3 July 2008)
On
5 May 2008 the Basmanniy District Court again granted an
investigator's application for an extension of the applicant's
detention and authorised further detention until 3 July 2008. The
District Court accepted the investigator's arguments that additional
time was necessary for the applicant and his lawyers to complete
studying the case file. It further noted as follows:
“The court also takes into account [the
applicant's] age, family situation, the state of his health and his
place of residence.
The court considers that by virtue of Article 110 of the
Russian Code of Criminal Procedure in the present time there are no
grounds to annul or change to a more lenient one the measure of
restraint in the form of the detention applied to [the applicant], as
the circumstances which had been taken into account when the measure
of restraint had been chosen on 4 July 2007, had not changed... Thus,
it follows from a certificate presented by a deputy head of the
Service – the head of the Department, lieutenant-general Mr V.,
that information was received in the course of the operative search
arrangements that [the applicant] may prevent the objective
examination of the criminal case by the trial court, as being in the
detention facility [he] tries to influence other members of the group
and witnesses. The court was not provided with evidence which could
contradict the investigator's arguments.”
The
applicant's lawyers appealed, complaining, inter alia, that
the District Court had grounded the extension order on assumptions
and had imposed on the applicant the burden of disproving the
investigators' assumptions. In particular, the lawyers noted that the
District Court had refused to call witnesses, including the FSB
official who had provided the District Court with the information
pertaining to the applicant's alleged attempts to influence
witnesses. Thus, the applicant had had no means of disproving the
investigators' arguments.
On
2 June 2008 the Moscow City Court upheld the detention order of 5 May
2008, noting that the District Court had advanced valid reasons for
the extension of the applicant's detention and that the District
Court's finding corresponded to the “factual circumstances of
the case”.
F. Detention order of 19 June 2008 (extension until 10
September 2008)
On
19 June 2008 the Moscow City Court extended the applicant's detention
until 10 September 2008, recognising the necessity to provide the
applicant and his lawyers with additional time to study the case
file. As to the further grounds for the extension of the detention,
the City Court held as follows:
“[The court] dismisses the arguments by the
accused, [the applicant], and his lawyer Mr S. that the
investigator's application is unsubstantiated, that [the applicant]
is unlawfully detained in a detention facility, that he has no
intention of absconding from the investigation and trial, and [that
he] cannot influence the course of the investigation as the
investigation is complete. In his application the investigator
rightfully notes that circumstances which had served as the grounds
for [the applicant's] remand in custody did not change and did not
cease to exist; he is charged with a particularly serious criminal
offence, the examination of [the applicant's] personality and his
behaviour during the pre-trial investigation allow the conclusion
that, if released, he can continue criminal activities, abscond the
investigation and trial, contact the individuals who took part in the
above-mentioned criminal offences and are not at present detained,
[he may] influence other participants in the criminal proceedings,
may take steps in order to destroy or falsify evidence, thus [he may]
pervert the course of the investigation in the criminal case.
The case file materials contain information from the FSB
that even while detained in the detention facility [the applicant]
tries to influence other members of the group and witnesses to his
criminal activities, looks for opportunities to conceal the results
of his crimes in other regions of the Russian Federation by warning,
through his relatives, individuals who participate in unlawful
activities.
[The applicant] is not registered with a drug abuse unit
or psychiatric hospital; [he] does not have illnesses which preclude
his detention.
[The applicant's] family situation and his age also do
not prevent his further detention.
In these circumstances, there are no grounds authorising
a change of the measure of restraint applied to the applicant to
another measure of restraint.”
On
29 July 2008 the Supreme Court of the Russian Federation upheld the
City Court's decision, merely noting that it was well-founded and
that the City Court had made a correct finding that, if released, the
applicant may obstruct the examination of the case.
G. Detention order of 29 August 2008 (extension until
10 December 2008)
On
29 August 2008 the Moscow City Court, in a decision which concerned
both the applicant and his co-defendants, extended their detention
until 10 December 2008 for the purpose of providing them with
additional time to study the case file. The City Court also referred
to the gravity of the charges against the defendants as a ground
warranting the further extension of their detention.
The
applicant and his lawyers appealed against the detention order,
requesting the applicant's release on bail.
On
14 October 2008 the Supreme Court of the Russian Federation upheld
the detention order, holding, in so far as relevant, as follows:
“As follows from the materials presented, [the
co-defendants and the applicant] are charged with particularly
serious criminal offences; a large amount of evidence was collected
in the case; the case file, which the defendants have to study,
comprises eighty-nine volumes, to which a substantial number of audio
and video recordings and material evidence is attached.
The case file materials were presented to [the
applicant's co-defendants] and their lawyers long before the
expiration of the maximum period of detention.
Taking into account those circumstances and the
investigator's reference that, if released, [the applicant and his
co-defendants] may contact persons who had taken part in the criminal
offences with which [the defendants] are charged and who are still
not detained, and that they may influence witnesses, the court
rightfully considered that the extension of the detention was
exceptional and rightfully decided to extend [the detention] for an
additional three months, at the same time [the applicant's] period of
detention does not exceed eighteen months.
...
[The court considers] manifestly ill-founded [the
defendants'] appeal arguments that [their] detention exceeded the
reasonable time-limits and is excessive and unlimited.
As follows from the materials the pre-trial
investigation was closed long ago; since 27 December 2007 the
defendants have been studying the case file materials and recently
[the applicant and another defendant] have asked to study the case
file materials once again, and [another co-defendant] has not yet
studied a number of audio and video recordings.
It follows that the lengthy periods of the [applicant's
and his co-defendants'] detention are caused by [the fact that it
takes the defendants] a long time to study the case file.
At the same time the case file does not contain any
information proving that the delay in the examination of [the case
file] was caused by the investigating authorities and the lawyers do
not refer to that fact in their statements of appeal.”
According
to the applicant, he finished examining the case file on 10 October
2008. Two weeks later the remaining defendants completed their
examination of the file. The Government, relying on the Supreme Court
decision of 14 October 2008, disputed the applicant's submissions,
arguing that in October the applicant had asked for additional time
to review the case file and his co-defendants had not yet finished
reading the file.
H. Detention order of 3 December 2008 (extension of the
applicant's detention until 10 February 2009)
On
3 December 2008 the Moscow City Court issued a decision collectively
extending the detention of the applicant and his co-defendants until
10 February 2009. The City Court reasoned that the grounds which had
called for the defendants' arrest (the gravity of the charges, the
defendants' personality, their broad connections to officials in
various State bodies, including law-enforcement agencies, and their
liability to abscond and pervert the course of the investigation
through tampering with witnesses, destruction of evidence or other
means) were still in place. At the same time the court dismissed as
irrelevant the applicant's lawyers' arguments that he had completed
the reading of the criminal case file, that he had been ill and that
he had no intention of perverting the course of the criminal
proceedings or absconding.
According
to the Government, on 10 December 2008 the last co-defendant
completed reading the case file and the defendants were committed to
stand trial before the Moscow City Court.
On
26 January 2009 the Supreme Court of the Russian Federation upheld
the decision of 3 December 2008, finding as follows:
“[The applicant and his co-defendants] are charged
with a particularly serious criminal offence committed within an
organised group; [they] were top-ranking officials; thus the court
correctly concluded that those persons, if released, could pervert
the proceedings in the case and influence witnesses.
...
As follows from the presented materials, [the
applicant's and his co-defendants'] state of health does not preclude
them from being detained and from participating in investigative
actions.
...
The court does not see grounds to accept the statements
of appeal.”
I. Further extensions of the applicant's detention.
Trial on 12 August 2009
In
the meantime, on 11 January 2009 the Moscow City Court scheduled a
preliminary hearing and held that the grounds warranting the
detention of the applicant and two of his ten co-defendants had not
changed and thus they should remain in custody.
On
23 January 2009 the Moscow City Court held a preliminary hearing, as
a result of which it found the case ready for trial and listed the
first trial hearing. At the same hearing the City Court examined the
applicant's lawyer's request for the applicant's release and
dismissed it, finding that the measure of restraint in respect of the
applicant and his two co-defendants had been chosen correctly on the
basis of a thorough consideration of their personal characteristics.
The court concluded that it was still necessary to keep them detained
to ensure the smooth course of the criminal proceedings.
The
applicant's lawyers appealed, arguing that five of the ten
co-defendants had been released in 2007 and another co-defendant in
2008. Their release did not affect the case and there were no reasons
to conclude that the applicant's release would in any way interfere
with the course of the proceedings. In support of their arguments the
lawyers relied on the judgments of the European Court of Human Rights
in the cases of Panchenko v. Russia (no. 45100/98, 8 February
2005), and Mamedova v. Russia (no. 7064/05, 1 June 2006),
insisting that the evidence had been collected and there was no need
to proceed with the applicant's detention.
On
12 March 2009 the Supreme Court of the Russian Federation, having
examined the lawyers' statements of appeal, upheld the decision of 23
January 2009, having supported the correctness of the City Court's
findings that the applicant was liable to abscond and interfere with
the course of justice if released.
On 22 June 2009 the Moscow City Court collectively
extended the detention of the applicant and his two co-defendants
until 25 September 2009. The relevant part of the decision read as
follows:
“The Moscow City Court received the present
criminal case on 25 December 2008 and since 19 February 2009 the
merits of the case have been examined in court hearings with the
participation of a jury; the evidence presented by the defence is
being examined now.
[The applicant and two other defendants] are charged
with a criminal offence which, by virtue of Article 15 of the Russian
Criminal Code, is considered particularly serious...
As follows from the case file materials, the measure of
restraint in the form of the arrest was taken in respect of [the
applicant and two defendants] in compliance with the requirements of
Articles 97-99 and 108 of the Russian Code of Criminal Procedure,
with the information about their character and state of health,...
and the nature of the crime having been taken into consideration.
Despite the arguments of the defence, the necessity to apply the
measure of restraint chosen earlier in respect of [the applicant and
two defendants] did not cease to exist, irrespective of the stage of
the trial proceedings; therefore, there are no grounds to annul or
apply a more lenient measure of restraint, as was requested by the
lawyers and defendants. The time-limit for [the defendants']
detention will expire on 25 June 2009... The case is at the stage of
trial examination. Although the prosecution has finished presenting
their evidence, the Russian Code of Criminal Procedure envisage an
opportunity to supplement the judicial inquiry after the defence
finishes presenting their evidence; therefore, the grounds for
keeping the defendants in custody did not cease to exist. The length
of the judicial proceedings is caused by objective reasons, that is
the facts that the case against eleven defendants is examined by the
jury; that a large number of prosecution witnesses were examined and
now the defence witnesses and experts are being heard; that numerous
written materials, laid down in 139 volumes of the case file, were
examined; that the large number of audio and video recordings... were
studied. There is no information about any circumstances which
preclude [the defendants'] detention. There are no grounds to apply
bail or other [more lenient] measures of restraint.
Taking into account the described circumstances, the
fact that the European Court of Human Rights has granted priority
treatment to application no. 5453/08 lodged by [the applicant]
against Russia cannot serve as a ground for releasing him.”
On
12 August 2009 the Moscow City Court found the applicant guilty as
charged, sentenced him to nine years' imprisonment and imposed a fine
of 1,000,000 Russian roubles (RUB).
II. RELEVANT DOMESTIC LAW
A. Placement in custody and detention
From
1 July 2002 matters of criminal law are governed by the Code of
Criminal Procedure of the Russian Federation (Law no. 174-FZ of
18 December 2001, “the new CCrP”).
1. Preventive measures
“Preventive measures” or “measures
of restraint” include an undertaking not to leave a town or
region, a personal guarantee, bail and remand in custody (Article 98
of the new CCrP).
2. Authorities ordering detention
The Russian Constitution of 12 December 1993 provides
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
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).
3. Grounds for remand in custody
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 97 § 1 of the new 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 99 of the new CCrP). A defendant
should not be remanded in custody if a less severe preventive measure
is available.
4. Time-limits for detention
(a) Two types of remand in custody
The
Code makes a distinction between two types of remand in custody: the
first being “during investigation”, that is, while a
competent agency – the police or a prosecutor's office –
is investigating the case, and the second being “before the
court” (or “during trial proceedings”), at the
judicial stage. Although there is no difference in practice between
them (the detainee is held in the same detention facility), the
calculation of the time-limits is different.
(b) Time-limits for detention “during
investigation”
After arrest the suspect is placed in custody “during
investigation”. The maximum permitted period of detention
“during investigation” is two months but this can be
extended for up to eighteen months in “exceptional
circumstances”. Extensions are to be authorised by judicial
decisions, taken by courts of ascending levels. No extension of
detention “during investigation” beyond eighteen months
is possible (Article 109 § 4 of the new CCrP).
The period of detention “during investigation”
is calculated up to the day when the prosecutor sends the case to the
trial court (Article 109 § 9 of the new CCrP).
Access to the materials in the file is to be granted
no later than one month before the expiry of the authorised detention
period (Article 109 § 5 of the new CCrP). If the defendant needs
more time to study the case file, a judge may, at the request of a
prosecutor, grant an extension of the detention until such time as
the file has been read in full and the case sent for trial (Article
109 § 8 (1) of the new CCrP).
(c) Time-limits for detention “before
the court”/”during judicial proceedings”
From
the date the prosecutor refers the case to the trial court, the
defendant's detention is classified as “before the court”
(or “during judicial proceedings”).
The new CCrP provides that the term of detention
“during judicial proceedings” is calculated from the date
the court received the file up to the date on which the judgment is
given. The period of detention “during judicial proceedings”
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).
5. Time-limits for trial proceedings
51. The new CCrP empowers
the judge, within fourteen days of receipt of the case file, (1) to
refer the case to a competent court; (2) to fix a date for a
preliminary hearing; or (3) to fix a trial date (Article 227). In the
latter case, the trial proceedings must begin no later than fourteen
days after the judge has fixed the trial date (Article 233 § 1
of the new CCrP). There are no restrictions on fixing the date of a
preliminary hearing.
The
duration of the entire trial proceedings is not limited in time.
The new CCrP provides that the appeal court must start
the examination of the appeal no later than one month after it is
lodged (Article 374).
B. Passports for travel
A Russian national has to produce a passport for
travel to cross the Russian border (section 7 of the Law on the
Procedure for Entering and Leaving the Russian Federation, no. 114-FZ
of 15 August 1996). The passport for travel belonging to an
accused can be retained by a court, a prosecutor or a policeman until
the termination of the criminal proceedings (sections 6.1 § 3
and 6.7 of the Instruction on issuance of passports for travel,
approved by the Order of the Ministry of Internal Affairs, no. 310 of
26 May 1997).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that his detention was excessively long. The
Court considers that this complaint falls to be examined under
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...”
A. Submissions by the parties
The
Government commenced their line of arguments with the description of
the criminal case in which the applicant had been involved. In
particular, they argued that the latter had been implicated in a
large-scale corruption when a group of high-ranking officials of the
Fund had organised a criminal enterprise, having received millions of
roubles in bribes from representatives of pharmaceutical companies
and officials of subordinated funds in the mandatory medical
insurance field. Activities of that criminal enterprise, in which the
applicant played an active role, caused substantial damage to the
system of provision of medicines to citizens of the Russian
Federation. In the Government's view, the institution of the criminal
proceedings against the applicant and his co-defendants was performed
in the interests of society and, in particular, its most vulnerable
groups. The length of the applicant's detention was therefore
justified by the requirements of the public interest.
The
Government further confirmed that at the first stages of the criminal
investigation the applicant had not been taken into custody, having
given a written undertaking not to interfere with the investigation.
However, in June and July 2007 it was established that the applicant
was taking steps to obstruct the course of justice by “inciting
individuals who possessed information about his criminal activities
to distort the facts”. It was also found that the applicant was
liable to take other measures to avoid criminal responsibility. In
response to that information the applicant's arrest was authorised.
The Government cited information by the FSB official, Mr V., laid
down in his letter of 2 July 2007.
In
a further line of arguments, the Government explained that the
domestic courts had thoroughly examined the grounds put forward by
the defence in support of their requests for the applicant's release.
However, they considered that neither the applicant's state of
health, nor his family and personal situation, nor the positive
reference which he had been given, nor his readiness to post bail for
himself or provide personal assurances outweighed the investigator's
arguments that the applicant should be kept in custody. The
Government submitted that the applicant's arrest had been based on a
reasonable suspicion that he had committed criminal offences. As to
subsequent extensions of the detention, each time there was a request
the domestic courts cited “relevant and sufficient”
reasons warranting the detention. The Government stressed that the
domestic courts' conclusions of the gravity of the charges against
the applicant and his liability to abscond and pervert the course of
justice through witness tempering and destruction of evidence had
derived from the particular factual circumstances and had not been
the mere assumptions.
In
conclusion, the Government asserted that the domestic courts had
exhibited particular diligence, having dealt with the very complex
case comprising eighty-nine volumes and involving eleven defendants
within the time-limits established by the Russian procedural law.
The
applicant responded by drawing the Court's attention to his
law-abiding behaviour during the almost eight months between the
institution of the criminal proceedings in November 2006 and his
arrest in July 2007. He insisted that neither the domestic courts nor
the Government could cite any occasion when he had not complied with
the investigators' order or had not responded to their summons. The
letter of 2 July 2007 in which a FSB general, Mr V., had noted that
the applicant had responded to every summons sent by the investigator
was the “living proof” of the applicant's cooperation
with the investigating authorities. He further stressed that any
conclusion that he was liable to pervert the course of justice,
reoffend or abscond had been no more than an assumption, with no
basis in fact. The domestic courts had not verified whether there was
a real risk of his absconding or interfering with the course of the
criminal proceedings. Nor had they provided the applicant with an
opportunity to contest the statement that he was capable of tampering
with witnesses or destruction of evidence. He had not been allowed to
call Mr V. to a court hearing to question him about the nature and
sources of the information referred to in his letter of 2 July
2007. Furthermore, the authorities had never indicated a single
witness who had allegedly been approached by the applicant or his
acquaintances with a proposal to falsify evidence. In addition, the
applicant considered it particularly striking that the courts had
extended his detention after all evidence had been collected and had
been presented before the jury.
The
applicant further pointed out that at no point in the proceedings had
the domestic courts explained why it was impossible to apply bail or
personal sureties as a measure of restraint. He also noted that the
domestic courts had never relied on the public interest or any damage
which his activities had allegedly caused to society as grounds
warranting his arrest and subsequent detention.
The Court's assessment
Admissibility
The
Court notes that this 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.
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 evidence given 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 factors
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
The
Court notes that the applicant was held in custody from 3 July
2007 until his conviction on 12 August 2009. A pre-trial detention of
this length – over two years – is a matter of concern for
the Court. It observes that during that period the domestic courts
extended the applicant's detention a number of times. In their
decisions they consistently relied on the gravity of the charges as
the main factor and on the applicant's potential to abscond, pervert
the course of justice and reoffend.
As
regards the courts' reliance on the gravity of the charges as the
decisive element, the Court has repeatedly held that the gravity of
the charges cannot of itself serve to justify long periods of
detention (see Panchenko v. Russia, no. 45100/98, § 102,
8 February 2005; Goral v. Poland, no. 38654/97, §
68, 30 October 2003; and Ilijkov, cited above, § 81).
This is particularly true in the Russian legal system, where the
characterisation in law of the facts – and thus the sentence
faced by the applicant – is determined by the prosecution
without judicial review of whether the evidence obtained supports a
reasonable suspicion that the applicant has committed the alleged
offence (see Khudoyorov v. Russia, no. 6847/02, §
180, ECHR 2005 X).
The
other grounds for the applicant's continued detention were the
domestic courts' findings that the applicant could abscond, pervert
the course of justice and reoffend. The Court reiterates that it is
incumbent on the domestic authorities to establish the existence of
concrete 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). It remains to be
ascertained whether the domestic authorities established and
convincingly demonstrated the existence of specific facts in support
of their conclusions.
(i) The danger of absconding
The
Court notes that the domestic authorities gauged the applicant's
potential to abscond by reference to the fact that he had been
charged with serious criminal offences, thus facing a severe
sentence. In this connection the Court reiterates that, although the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the need to
continue the deprivation of liberty cannot be assessed from a purely
abstract point of view. It must be examined with reference to a
number of other relevant factors which may either confirm the
existence of a danger of absconding and reoffending or make it appear
so slight that it cannot justify detention pending trial (see
Letellier v. France, 26 June 1991, § 43, Series A no.
207, and Panchenko, cited above, § 106).
It appears that, apart from the reference to the
gravity o0f the charges, the only other factor on which the domestic
courts based their conviction of the applicant's liability to abscond
was his ownership of a passport for travel. In this respect, the
Court accepts that the possession of the passport for travel could be
a relevant factor in assessing the risk of flight. However, the
danger of an accused absconding does not result just because it is
possible or easy for him to cross the frontier: there must be a whole
set of circumstances, such as, particularly, the lack of
well-established ties in the country, which give reason to suppose
that the consequences and hazards of flight will seem to him to be a
lesser evil than continued imprisonment (see Stögmüller
v. Austria, 10 November 1969, § 15). The domestic
courts did not mention any such circumstance in their decisions or
point to any specific aspects of the applicant's character or
behaviour that would justify their conclusion that the applicant
presented a persistent flight risk. The applicant, on the other hand,
constantly invoked the facts showing his close ties with Russia, such
as his permanent place of residence, work and family in Russia, and
cited other factors, for instance his age and poor health, to confirm
that there was no danger of his absconding (see, by contrast, W.
v. Switzerland, 26 January 1993, § 33, Series A no. 254 A).
The Court also does not overlook the fact, which was not disputed by
the Government, that the applicant was not in custody for the first
eight months after the criminal proceedings had been instituted on
the bribery charge, having complied with the prosecution's orders and
participated in the investigation process, whenever summoned. In any
event, the domestic authorities did not explain why the withdrawal of
the applicant's Russian passport for travel, a measure explicitly
envisaged in domestic law for removing flight risks, would not have
been sufficient to prevent him from absconding abroad (see Lind v.
Russia, no. 25664/05, § 81, 6 December 2007).
The
Court further observes that the authorities did not indicate any
other circumstance to suggest that, if released, the applicant would
abscond. Even though, as the Government submitted, other facts that
could have warranted the authorities' conclusion about his potential
to abscond may have existed, they were not mentioned in the detention
orders and it is not the Court's task to establish such facts 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 a risk was not established.
(ii) The danger of perverting the course
of justice
As
to the domestic courts' findings that the applicant was liable to
pervert the course of justice, the Court notes that at the initial
stages of the investigation the risk that an accused person will
pervert the course of justice could justify keeping him or her in
custody. However, after the evidence has been collected, that ground
becomes irrelevant (see Mamedova v. Russia, no. 7064/05, §
79, 1 June 2006).
In
its decision of 4 July 2007 the Basmanniy District Court for the
first time relied on the information provided by the FSB
lieutenant-general, Mr V., and concluded that the applicant was
planning to interfere with the course of justice, allegedly urging
witnesses to distort information about his criminal activities (see
paragraphs 8 and 11 above). In every subsequent detention order the
judicial authorities relied heavily on the applicant's potential to
tamper with witnesses, given the information provided by the FSB. The
Court understands the authorities' concerns the first time they
received the relevant information. It acknowledges that in view of
the gravity of the accusations against the applicant and the
seriousness of the information submitted by the FSB officials, the
judicial authorities could justifiably have considered that an
initial risk of the applicant's perverting the course of the
investigation had been established (see, for similar reasoning,
Aleksandr Makarov v. Russia,
no. 15217/07, § 125, 12 March 2009).
The
Court cannot however overlook the fact that the information from the
FSB officials was not supported by any evidence (statements by
witnesses allegedly approached by the applicant or his acquaintances,
records of official inquiries, and so on). The Court accepts that the
extension of the applicant's detention may initially have been
warranted for a short period to provide the prosecution authorities
with time to verify the information presented by the FSB official and
to adduce evidence in support. However, with the passage of time the
mere availability of the statement, without any evidence to support
its veracity, inevitably became less and less relevant, particularly
so when the applicant persistently disputed his intention to
interfere with the course of the criminal proceedings and had been
cooperating impeccably with the investigating authorities for months
prior to his arrest.
In
this connection the Court considers that the domestic authorities
were under an obligation to analyse the applicant's situation in
greater detail and to give specific reasons, supported by evidentiary
findings, for holding him in custody (see Musuc v. Moldova,
no. 42440/06, § 45, 6 November 2007). The Court does not find
that the domestic courts executed that obligation in the present
case. It is a matter of serious concern for the Court that the
domestic authorities applied a selective and inconsistent approach to
the assessment of the parties' arguments pertaining to the grounds
for the applicant's detention. While deeming the applicant's
arguments to be subjective and giving no heed to relevant facts which
reduced the risk of his interfering with the establishment of the
truth, the courts accepted the statement from the FSB official
uncritically, without questioning its credibility. The
Court further reiterates that for the domestic courts to demonstrate
that a substantial risk of collusion existed and continued to exist
during the entire period of the applicant's detention, it did not
suffice merely to refer to the FSB information. They should have
analysed other pertinent factors, such as the advancement of the
investigation or judicial proceedings, the applicant's personality,
his behaviour before and after the arrest, and any other specific
indications justifying the fear that he might abuse his regained
liberty by carrying out acts aimed at falsification or destruction of
evidence or manipulation of witnesses (see W. v. Switzerland,
cited above, § 36).
In
this respect, the Court observes that at no point in the proceedings
did the domestic courts provide a basis for their conclusion of the
risk of collusion, for instance by indicating a particular occasion
on which the applicant had attempted to influence witnesses. Apart
from a bald reference to the applicant's and his relatives' attempts
to persuade co-defendants and certain unidentified witnesses to make
“beneficial statements”, the domestic courts did not
mention any specific matters warranting the applicant's detention on
that ground.
However,
more fundamentally, the Court finds it striking that relying on
certain information, the domestic court did not provide the applicant
with an opportunity to challenge it, for example, by having the
sources of that information examined (see, for comparison, Becciev
v. Moldova, no. 9190/03, §§ 73-76, 4 October
2005), or at least by serving him with copies of the co-defendants'
or witnesses' complaints or statements alleging witness tampering, if
such statements and complaints had been lodged with the prosecution
authorities. It appears, and the Government did not argue otherwise,
that the applicant was not even notified of the origin and nature of
the submissions lodged by the investigating authorities to
corroborate their assertion of witness manipulation. Moreover,
the Court finds it peculiar that being informed of the instances of
the witness manipulation, the prosecution authorities did not
institute criminal proceedings or at least open a preliminary inquiry
into those allegations. The Court observes, and the parties did not
dispute that fact, that the domestic authorities did not take any
actions against either the applicant, his relatives or confidents,
that they were never subject to any form of investigation and were
not even questioned about the alleged attempts to manipulate
witnesses. The Court is therefore not convinced that the domestic
authorities' findings of the applicant's liability to pervert the
course of justice had sufficient basis in fact (see, for similar
reasoning, Aleksandr Makarov, cited
above, § 132).
Furthermore,
the Court notes that the pre-trial investigation in respect of the
applicant was completed at the end of December 2007 (see paragraph 18
above). He remained in custody for an additional twenty months,
during which the proceedings were pending before the trial court. It
thus appears that the domestic authorities had sufficient time to
take statements from witnesses in a manner which could have excluded
any doubt as to their veracity and would have eliminated the
necessity to continue the applicant's deprivation of liberty on that
ground (see, for similar reasoning, Solovyev v. Russia, no.
2708/02, § 115, 24 May 2007). The Court therefore finds that,
having failed to act diligently, the national authorities were not
entitled to regard the circumstances of the case as justification for
using the risk of collusion as a further ground for the applicant's
detention. In addition, the Court considers it particularly
preposterous that after all the prosecution witnesses had been heard
in open court, the domestic courts still continued citing the risk of
collusion as the ground for the applicant's detention, having
envisaged an abstract possibility of the judicial inquiry being
supplemented (see paragraph 39 above).
(iii) The risk of reoffending and the
preservation of public order
In
a number of the detention orders the domestic courts cited the
likelihood that the applicant would reoffend as an additional ground
justifying his continued detention. In this connection, the Court
observes that the judicial authorities did not mention any specific
matters supporting their finding that there existed a risk of the
applicant's reoffending. Furthermore, the Court does not share the
national authorities' opinion that in a situation when all charges
against the applicant were brought against him in respect of his
actions as the first deputy director of the Fund from which he had
resigned in August 2006, there was a real danger of the applicant
committing new offences.
In
their submissions to the Court, the Government relied on another
ground which, in their opinion, necessitated the applicant's
detention. In particular, they emphasised the need to protect the
interests of society. Although that ground was never relied on by the
domestic courts, the Court nevertheless considers it necessary to
address the Government's argument.
The
Court has already held on a number of occasions that, by reason of
their particular gravity and public reaction to them, certain
offences may give rise to a social disturbance capable of justifying
pre-trial detention, at least for a time. In exceptional
circumstances this factor may therefore be taken into account for the
purposes of the Convention, in any event in so far as domestic law
recognises the notion of disturbance to public order caused by an
offence. However, this ground can be regarded as relevant and
sufficient only provided that it is based on facts capable of showing
that the release of the accused would actually disturb public order.
In addition detention will continue to be legitimate only if public
order remains actually threatened; its continuation cannot be used to
anticipate a custodial sentence (see Letellier, cited above,
§ 51).
In
the present case these conditions were not satisfied. Apart from the
fact that Russian law does not list the notion of disturbance to
public order among permissible grounds for detention of accused
persons, the Court notes that the Government relied on the alleged
danger to public interests from a purely abstract point of view,
relying solely on the gravity of the offences allegedly committed by
the applicant and insisting on the particular vulnerability of the
social group which had suffered damage from the applicant's criminal
activities. They did not provide any evidence or indicate any
instance which could show that the applicant's release could have
posed an actual danger to public order.
(iv) Alternative measures of restraint and
collective detention orders
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). During the entire period under consideration
the authorities did not consider the possibility of ensuring the
applicant's attendance by the use of other “preventive
measures” – such as a written undertaking or bail –
which are expressly provided for in Russian law to secure the proper
conduct of criminal proceedings. In this connection, the Court does
not lose sight of the fact that the applicant offered to post bail
and also listed sureties to secure his release. However, that
guarantee was rejected without due consideration. Furthermore, the
Court finds it particularly striking that the applicant was kept in
custody for almost a year, from December 2007 to December 2008, for
the sole purpose of studying the case file. However, at no point did
either the Basmanniy District Court, the Moscow City Court or the
Supreme Court, which examined the issue of the lawfulness of the
applicant's detention during that period, consider having recourse to
such alternative measures or, at the very minimum, seek to explain in
their decisions why such alternatives would not have ensured that the
trial would follow its proper course.
It
is also of particular concern for the Court that on a number of
occasions the domestic courts, using the same formula, simultaneously
extended the detention of the applicant and his co-defendants. In the
Court's view, this approach in itself is incompatible with the
guarantees enshrined in Article 5 § 3 of the Convention in so
far as it permits the continued detention of a group of persons
without a case-by-case assessment of the grounds for detention or of
compliance with the “reasonable time” requirement in
respect of each individual member of the group (see Dolgova v.
Russia, no. 11886/05, § 49, 2 March 2006).
(c) Conclusion
In
sum, the Court finds that the domestic authorities' decisions were
not based on an analysis of all the pertinent facts. They took no
notice of the arguments in favour of the applicant's release pending
trial.
Having
regard to the above, the Court considers that by failing to refer to
concrete relevant facts or consider alternative “preventive
measures”, the authorities extended the applicant's detention
on grounds which cannot be regarded as “sufficient”. They
thus failed to justify the applicant's continued deprivation of
liberty for a period of over two years. It is hence not necessary to
examine whether the proceedings against the applicant were conducted
with due diligence during that period as such a lengthy period cannot
in the circumstances be regarded as “reasonable” within
the meaning of Article 5 § 3 (see Pekov v. Bulgaria,
no. 50358/99, § 85, 30 March 2006).
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant further complained under Articles 5, 6 and 18 of the
Convention that his detention had been unlawful, that the domestic
courts had been biased and had pursued unlawful purposes having
decided to arrest him.
Having
regard to all the material in its possession, the Court finds that
the evidence discloses no 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.
III. 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.”
A. Damage
The
applicant claimed 411,924 euros (EUR) in respect of pecuniary damage,
representing income lost during his detention. He further claimed EUR
20,000 in respect of non-pecuniary damage.
The
Government commented that the claims were baseless and could not be
the direct cause of the violation alleged.
As
to the claim in respect of the pecuniary damage, the Court finds no
causal link between the violations found and the alleged loss of
earnings. The Court therefore finds no reason to award the applicant
any sum under this head (see, for similar reasons, Nakhmanovich v.
Russia, no. 55669/00, § 102, 2 March 2006). At the same
time the Court considers that the applicant's suffering and
frustration, caused by the fact that he has spent a long period in
custody without relevant and sufficient grounds, cannot be
compensated for by a mere finding of a violation. Making its
assessment on an equitable basis it awards the applicant EUR 2,400 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
The
applicant did not seek reimbursement of costs and expenses and this
is not a matter which the Court is required to examine of its own
motion (see Motière v. France, no. 39615/98, § 26,
5 December 2000).
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning an alleged
violation of the applicant's right to trial within a reasonable time
or release pending trial admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,400 (two
thousand four hundred euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable on the date
of the settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 29 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
