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SUSLOV v. RUSSIA - 2366/07 [2012] ECHR 891 (29 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/891.html
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[2012] ECHR 891
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FIRST
SECTION
CASE OF SUSLOV v. RUSSIA
(Application
no. 2366/07)
JUDGMENT
STRASBOURG
29
May 2012
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 Suslov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2366/07)
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 Eduard Anatolyevich Suslov (“the
applicant”), on 26 December 2006.
The applicant was represented by Mr A.
Yudin, a lawyer practising in Ryazan. The Russian Government
(“the Government”) were represented by Mr G. Matyushkin,
the Representative of the Russian Federation at the European Court of
Human Rights.
3. The
applicant alleged, in particular, that his detention
pending investigation beyond the maximum of eighteen months
allowed by the domestic law had been unlawful and that his detention
as a whole had not been based on relevant and sufficient grounds.
On
24 November 2009 the President of
the First Section decided to give notice of the above
complaints to the Government. It was also
decided (pursuant to former Article 29 § 3 of the
Convention) to rule on the admissibility and merits of the
application at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1969 and prior to his conviction
lived in Ryazan.
A. The applicant’s arrest and initial detention
On
28 December 2004 the investigator of the Ryazan Regional Prosecutor’s
Office, with approval by a prosecutor, requested the Sovetskiy
District Court, Ryazan, to remand the applicant in custody on
suspicion of banditry and involvement in an organised criminal group.
On
the same day the applicant was arrested.
In the meantime, on 29 December 2004 the Ryazan
Sovetskiy District Court remanded the applicant in custody. The court
held as follows:
“The crimes of which [the applicant] is suspected
fall into a category of especially grave crimes punishable by over
two years’ imprisonment.
Opting for a more lenient preventive measure for [the
applicant] is impossible, taking into account the particular gravity
of the crimes of which [the applicant] is suspected, as well as the
fact that disclosure of the identity of members of a criminal gang,
including [the applicant], can create a real threat to the safety of
witnesses, victims and their relatives, which follows from
[statements] by [witness D.] ...”
On 21 January 2005 charges of banditry,
involvement in a criminal group, extortion and fraud under Articles
209 § 2, 210 § 2, 163 § 3 and
159 § 3 of the Criminal Code were brought against the
applicant. He was questioned as the defendant.
On
25 January 2005 the Ryazan Regional Court upheld the decision of
29 December 2004 on appeal.
On
an unspecified date the applicant challenged the lawfulness of his
arrest. Stating that he was an advocate, the applicant claimed that
his arrest required the prior consent of a court. On 20 March
2007 the Ryazan Regional Court, acting as the most senior level of
jurisdiction, found the applicant’s arrest not to have breached
the requirements of the domestic law.
B. Further detention during the investigation phase
On 24 February 2005 the Ryazan Sovetskiy District
Court extended the applicant’s detention until 24 June 2005.
The court held as follows:
“The crimes [charged against the applicant]
belong, pursuant to Article 15 of the Criminal Code, to the category
of particularly grave crimes, which according to Article 108 of
the Code of Criminal Procedure gives ground for the application of a
[custodial measure]. ...
At the present time it is necessary to carry out several
operational and investigative actions, to establish the whereabouts
of the known members of the criminal gang, to bring charges against
them, to carry out interrogations and confrontations, as well as to
familiarise the defendants, the victims and their counsel with the
case-file material. ...
The argument by defence counsel about the change of
circumstances which laid the basis for application of a custodial
measure cannot be taken into consideration.
The reference of defence counsel to the fact that the
charges against [the applicant] do not involve an episode involving
[witness D.], whose statement that he had received death threats from
[the applicant] had been the ground for application of a custodial
measure, is unsubstantiated.
A statement by [witness D.], his handwritten
explanation, as well as the record of the viewing of a video
recording of 6 May 2002, from which it follows that D. is a witness
to a crime, [that he] fears for his life and [that] the threat comes,
inter alia, from [the applicant], have been examined by the
judge [...] as matters characterising [the applicant’s]
personality and giving grounds to believe that his being at large
could constitute a real danger to safety for [witness D.] as for
other witnesses, victims and their families.
Therefore, taking into account the foregoing and the
nature of the crimes with which [the applicant] is charged, the court
concludes that there are sufficient grounds to believe that [if not
detained, the applicant] may interfere with the proceedings in the
criminal case by influencing witnesses.
In such circumstances there are no grounds for altering
the custodial measure to a more lenient one. ...”
On
31 March 2005 the Ryazan Regional Court upheld the above
decision on appeal.
On
23 June and 15 September 2005 the Sovetskiy District Court extended
the applicant’s detention until 24 September and
28 December 2005 respectively. The court relied on the gravity
and the nature of the charges, the particular complexity of the case
and the necessity to carry out subsequent investigative actions. It
further invoked the risks of the applicant’s absconding and
hampering the criminal proceedings by exerting pressure on witnesses
and victims, and the absence of any grounds for altering the
custodial measure.
On
18 October 2005 the Ryazan Regional Court upheld the decision of
15 September 2005 on appeal.
On
28 December 2005 the Ryazan Regional Court extended the applicant’s
detention until 24 March 2006. The court held as follows:
“It appears from the case-file material that the
armed gang of which [the applicant] was a member had and has
well-tested systems of secrecy and defence from law-enforcement
bodies (отработанные
системы
конспирации
и защиты
от
правоохранительных
органов);
if at liberty [the applicant] might take action against the ongoing
investigation, including by way of exerting unlawful pressure on
witnesses and victims.
It follows from the case-file material that in the
course of operational search activities officers of the Organised
Crime Unit at the Ryazan Regional Department of the Interior obtained
information to the effect that the members of the Osokinskaya
criminal group, knowing that criminal proceedings in connection with
its criminal activity had begun, were making inquiries about those
who had been questioned in the case as witnesses and victims, with
the view of subjecting them to unlawful influence. ...”
On
14 February 2006 the Supreme Court of Russia upheld the above
decision on appeal.
On 21 March 2006 the Ryazan Regional Court further
extended the applicant’s detention until 28 June 2006,
that is for a total duration of eighteen months. In taking the
relevant decision the Regional Court had regard to the particular
gravity of the charges against the applicant and the risk that he
would exert pressure on witnesses (the court applied the wording of
the previous extension order of 28 December 2005). The court
also examined the possibility of applying a more lenient preventive
measure and dismissed it.
On 26 April 2006 the charges against the applicant
were rectified. They involved banditry, involvement in a criminal
group, extortion, fraud, pressurising those involved to complete
deals, organising robbery, murder, attempted murder and infliction of
grave bodily harm, and trafficking in firearms and ammunitions under
Articles 209 § 2, 210 § 2, 163 § 3,
159 § 3, 179 § 2, 162 § 3
(in conjunction with Article 33 § 3), 105 § 2 (in
conjunction with Articles 30 § 3 and 33 § 3),
111 § 3 (in conjunction with Article 33 § 3)
and 222 § 3 (alone and in conjunction with Article
33 § 3) of the Criminal Code.
On 4 May 2006 the applicant and his lawyer were
informed that the pre-trial investigation had been terminated. From
the documents submitted by the Government it can be seen that they
both signed the document on termination of the pre-trial
investigation and expressed the wish to read the case file, both
together and separately.
On
18 May 2006 the applicant started reading the case file.
On the same day the applicant’s lawyer was
invited to study the case file. This is supported by a letter
inviting the applicant’s lawyer to appear at the IZ-62/1
facility in Ryazan at 10 a.m. to study the case-file material. The
letter bears a handwritten note made by the head of the bar
association, of which the applicant’s lawyer was a member:
“Received for transfer to A. Yudin. 18 May 2006.
Signature”.
On 23 June 2006 the Ryazan Regional Court extended the
applicant’s pre-trial detention until he and his lawyer had
finished studying the case file (consisting of seventy-five volumes),
but not beyond 24 September 2006. The court held as follows:
“[...] Pursuant to Article 109 § 7 of the
Code of Criminal Procedure, if upon completion of a pre-trial
investigation the time-limits set out in Article 109 § 5
for giving the accused and his counsel access to the case file have
been complied with, but the thirty-day period proves insufficient for
them to read the entire file, an investigator [...] may submit to the
court, no later than seven days before the expiry of the maximum
detention period, a request for extension of the period of detention.
In [the applicant’s] case the above-mentioned requirements of
law have been complied with.
In his request for extension of [the applicant’s]
detention pending the investigation until [the applicant] and his
counsel had finished reading the file [...] the investigator
indicated that at the present moment there were no grounds for
altering or discontinuing the application of a [custodial measure].
As before, there are sufficient reasons to believe that, if released,
[the applicant], taking into account the gravity of the charges
against him, may abscond or otherwise obstruct the proceedings in the
case. Therefore, the circumstances which led the court to apply the
custodial measure to [the applicant] have remained unchanged.
At the same time, extending [the applicant’s]
detention until he and his counsel have finished reading the case
file... without indicating a specific end-date contradicts the
requirements of Article 109 of the Code of Criminal Procedure. The
above Article implies that the extension is granted for the time
requested by the investigation authorities. [However], extending [the
applicant’s] detention without indication of a specific
end-date... would have worsened [his] situation and removed the
preventive measure from judicial control.
On 7 February 2006 the Deputy Prosecutor General
extended the time-limit for pre trial investigation... until 24
September 2006 inclusive.
Therefore, the court extends [the applicant’s]
detention until he and his counsel have finished reading the case
file..., until 24 September 2006 inclusive, that is until the
expiry of the time-limit for the pre-trial investigation. ...
The argument put forward by the defence, to the effect
that the investigation authorities have breached the requirements of
Article 109 § 5, is unsubstantiated.
It follows from the record on termination of the
investigative actions of 4 May 2006 that [the applicant] and [his
lawyer] expressed their wish to read the case file both together and
separately.
On 18 May 2006 the head of the Central Bar Association
[of Ryazan], K., received a notification in the name of [the
applicant’s lawyer Yud.] informing [the latter] that [the
applicant] had started reading the case file and that he was also
invited to appear on 19 May 2006 at the Ryazan IZ-62/1 remand
prison to [study the case file].
According to the record of the studying of the case file
and statements made by [the applicant] and [his lawyer], they met in
the remand prison on several occasions after 18 May 2006, yet did not
discuss when they would jointly study the case file.
It appears from the foregoing that until 31 May
2006 [applicant’s lawyer Yud.] deliberately did not appear to
study the case file, to give himself an opportunity to use this
situation before the court.
The requirements of Article 109 § 5 of the Code of
Criminal Procedure were therefore complied with...”
On
16 August 2006 the Supreme Court of Russia upheld the above decision
on appeal.
On 18 September 2006, and 18 January, 21 May and
11 September 2007, the Ryazan Regional Court further extended
the applicant’s detention until he and his lawyer had completed
their reading of the case file, but not beyond 24 January,
24 May and 24 September 2007, and 24 January 2008
respectively. All the decisions were worded similarly to the decision
of 23 June 2006.
On
31 October 2006 and 14 March, 17 July and 24 October
2007 respectively, the Supreme Court of Russia upheld the above
decisions on appeal.
Following
the request by the investigator, on 31 October 2007 the Ryazan
Sovetskiy District Court limited until 21 December 2007 the time
for the applicant and his lawyer to study the case file.
On
27 December 2007 the investigator took a decision that the reading of
the case file by the applicant and his lawyer should be terminated.
On 17 January 2008 the applicant and his lawyer signed
the record to the effect that they had completed their reading of the
case file.
On 18 January 2008, however, the Ryazan Regional Court
further extended the applicant’s detention until 24 April
2008, with reference to Article 109 § 7 of the Code of
Criminal Procedure. The court had regard to the fact that the
applicant’s lawyer had submitted a request (the nature of the
request was not specified in the relevant court decision) which had
not yet been processed, that other co-defendants had not finished
reading the case file, and also to the gravity and the nature of the
charges against the applicant and the risk of his absconding or
otherwise interfering with the course of the proceedings.
On
8 April 2008 the criminal case against the applicant and fifteen
others was transferred to the Ryazan Regional Court for trial.
C. Detention during the trial phase
At the preliminary hearing on 23 April 2008 the Ryazan
Regional Court extended the applicant’s and nine other
co-defendants’ detention during judicial proceedings until 8
October 2008. In so far as it concerned the applicant, the decision
read as follows:
“... [The applicant] was arrested on 28 December
2004. His detention has been repeatedly extended in accordance with
the criminal procedural law, the last time until 24 April 2008,
for a total of three years, three months and twenty-eight days.
...
Pursuant to Article 110 of the Code of Criminal
Procedure a preventive measure can be lifted or changed if it is no
longer necessary or if the grounds for its application have changed.
It follows from the material examined by the court that
the factual circumstances which had served as the ground for the
court decisions to apply a custodial measure to the defendants and
its subsequent extension have not changed and remain... sufficient,
from the point of view of the principle of reasonableness, to
maintain the [above] preventive measure. No convincing arguments were
put forward by the defence as to the existence of any new factual or
legal grounds for altering the preventive measure.
The circumstances pointed out by the defendants and
their counsel such as [the defendants’] positive references,
their family situation, [the existence of] permanent residence,
[their] state of health and the necessity to support their families,
do not preclude a risk of them absconding from justice or otherwise
obstructing the proceedings in the case, since the defendants are
charged with particularly grave crimes, including banditry. ...
The [above] circumstances are not favourable for
replacing the [custodial] measure with [a more lenient one].
Notwithstanding the overall length of the defendants’
detention, the existing risk of their absconding is a sufficient
ground for limiting their [right to] liberty of person. Furthermore,
the extension of detention in respect of defendants charged with
banditry is justified by the necessity to protect the rights and
interests of victims and witnesses, as well as the public interest,
which, in spite of the presumption of innocence, outweighs the
respect for individual liberty. ...”
On
17 June 2008 the Supreme Court of Russia upheld the above decision on
appeal.
In
the meantime, on 7 June 2008 the Ryazan Regional Court had scheduled
the opening date of the trial and maintained the preventive measures
applied to the applicant and his co-defendants.
On
24 September 2008 the Ryazan Regional Court extended the applicant’s
and nine other co-defendants’ detention for three months, until
8 January 2009. It found as follows:
“... [The defendants] have been charged with
banditry and involvement in criminal community, - criminal offences
directed against public safety and public order. [The applicant and
four other co-defendants] have also been charged with aggravated
murders. The crimes charged against the defendants belong to a
category of grave and particularly grave crimes the punishment for
which not only exceeds two years’ imprisonment, but also
exceeds the time the defendants had spent in custody so far.
According to the information contained in the case file
regarding the [defendants’] personalities:
- [the applicant and seven others], who have families
and children, were not working for a long time before their arrests;
...
It also follows from the submissions by the prosecution
that:
[Prosecution witness Yezh.] submitted to the court that
pressure had been exerted on him by the defendants in respect of whom
the custodial measure had been applied with the purpose of forcing
him to make false statements about them.
[Defendant S.] who admitted his guilt [...] but who had
not yet been questioned by the court on the merits of the charges,
asked the court to take safety measures in his respect until he had
been questioned, fearing [intimidation] by [the defendants in
detention]. ...
Safety measures had been taken in respect of a number of
witnesses who [also] feared for their safety. Some of them... were
questioned by the court anonymously and in conditions in which they
could not be seen by others present during the proceedings.
[Separate proceedings were instituted against several
other suspects who are being searched for.] ...
The breaches of court orders committed by the defendants
during the questioning of prosecution witnesses show that they were
attempting to influence witnesses even in court.
Of 500 [prosecution witnesses] the court has questioned
only thirty-two.
Therefore, it has been established that the court had
not questioned the majority of the witnesses and victims; [that]
there are grounds to be concerned about [the risk of] unlawful
influence over them by the defendants; [that] there are witnesses and
one of the defendants who fear such influence; [that] the defendants
have actual opportunity to exert such influence even while they are
in custody; [and that] there are witnesses who have already been
intimidated [by the defendants].
Analysis of the above information gives grounds to
believe that, if released, the defendants not only may abscond and
maintain their criminal activity, but also influence victims and
witnesses who have not yet been questioned by the court, thereby
obstructing the administration of justice.
The defence has not put forward any circumstances
preventing the defendants from being detained in custody; nor can any
such circumstances be seen from the case file. The defence has also
not put forward a valid argument regarding the existence of new
factual or legal grounds for altering the custodial measure.
The circumstances mentioned by the defence... such as
[the defendants’] positive references, their [family situation]
and [existence of permanent residence]... cannot be viewed by the
court as preferential and sufficient grounds for altering the
custodial measure. Besides, the existence of these circumstances as
such does not exclude the possibility that the defendants will
abscond or otherwise obstruct the proceedings in the case, since they
are charged with particularly serious crimes, including banditry,
punishable with imprisonment.
When examining parties’ requests concerning
custodial measures the court takes into consideration: the gravity
and the nature of the charges against the defendants; the
reasonableness of the suspicion justifying the placement of each
defendant in custody; the time each of the defendants had already
spent in custody; personal data in respect of each of the defendants;
[and] the possibility of applying a more lenient preventive measure.
The [defendants’] detention had been ordered and
repeatedly extended in accordance with the rules of criminal
procedure.
Article 255 of the Code of Criminal Procedure provides
for the possibility of extending detention during criminal
proceedings beyond six months in cases concerning serious or
particularly serious criminal offences, each time for no longer than
three months.
It follows from the case-file material that the factual
circumstances which [were taken into consideration by the courts]
when [applying and extending] the custodial measure had not only
remained unchanged, but had been expanded by new and substantial
circumstances, which, taken together, are evaluated by the court as
sufficient... grounds for maintaining the custodial measure.
The risk existing at the current stage of the
proceedings of the defendants’ absconding is a sufficient
ground for [further] deprivation of [their] liberty, notwithstanding
the lengthy term of their pre-trial detention. Besides, the extension
of detention in respect of those charged with banditry is justified
by the necessity to protect the rights and interests of victims and
witnesses, as well as [the necessity to protect] the public interest,
which, in spite of [the defendants’] presumption of innocence,
outweighs respect for individual liberty. ...”
On
21 November 2008 the Supreme Court of Russia upheld the above
decision on appeal.
On
22 December 2008 the Ryazan Regional Court extended the applicant’s
and nine other co-defendants’ detention for three months, until
8 April 2009 inclusive. The court applied the same reasoning as
in its extension order of 24 September 2008. In addition, the court
took into account that the members of the criminal group of which the
applicant was allegedly a member helped each other whenever criminal
proceedings were instituted against either of them, so that the
member would escape punishment or receive a less severe one. The
court specifically referred to two examples of such behaviour by
members of the criminal group in question.
On
24 February 2009 the Supreme Court of Russia upheld the above
decision on appeal.
On
23 March, 15 June and 24 September 2009 the Ryazan Regional Court
extended the applicant’s and nine other co-defendants’
detention each time for three months, until 8 July and 8 October
2009 and 8 January 2010 respectively. The court adopted the same
reasoning as in its previous extension orders and addressed new
arguments raised by some of the defendants (not the applicant).
On
27 April, 30 July and 3 November 2009 respectively the Supreme
Court of Russia upheld the above extension orders on appeal.
On
21 December 2009 the Ryazan Regional Court extended the applicant’s
and his nine co-defendants’ detention during judicial
proceedings for an additional three months, until 8 April 2010. The
court added to its previous reasoning the fact that during the trial
some of the witnesses and the victims had changed their statements in
so far as they concerned the applicant and two other co-defendants.
The court further referred to the large volume of case material and
evidence, involving multiple episodes and numerous participants.
On 24 March, 30 June, 23 September and
20 December 2010 the Ryazan Regional Court further extended the
applicant’s and his nine co defendants’ detention
during judicial proceedings, each time for three months, until 8 July
and 8 October 2010 and 8 January and 8 April 2011
respectively. The court applied the same line of reasoning as in its
previous extension orders. The extension order of 30 June 2010
further addressed the defendants’ argument that the length of
their detention during judicial proceedings was excessive:
“The defendant’s argument, that their
detention during judicial proceedings has been excessively long, is
disproved by the trial itself. The multi-episode criminal case with a
large number of participants has been being examined [by the court]
on the merits since 30 July 2008; hearings are only adjourned at
the request of the defence or when defence counsel are unable to
attend; there are no unjustified interruptions in the proceedings.
The court has repeatedly applied ... measures to all the defendants
detained during judicial proceedings... for breaches of court orders
and [manifest actions aimed at] delaying the proceedings. The legal
and factual complexity of the case, the conduct of the defendants...
and the organisational measures being taken by the court show [that
the trial is being carried out in compliance with the reasonable time
requirement].”
D. The applicant’s conviction
On
28 March 2011 the Ryazan Regional Court convicted the applicant of
banditry, aggravated murder, robbery, extortion, fraud and
pressurising others to complete deals, and sentenced him to sixteen
years’ imprisonment. The judgment ran to 335 pages.
On
19 October 2011 the Supreme Court of Russia upheld the above
judgment on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Russian Federation
Article
22 of the Constitution provides that everyone shall have the right to
freedom and inviolability of person. It further provides that arrest,
detention and remand in custody shall be allowed only by a court
decision.
B. The Code of Criminal Procedure of the Russian
Federation (“CCrP”)
1. Arrest and preventive measures in criminal
proceedings
The police may arrest a person suspected of committing
an offence punishable by imprisonment if the person is caught in the
act of committing an offence or immediately after committing it. No
judicial authority is required for the arrest (Article 91).
Within
forty-eight hours of the time of the arrest a suspect must be
released if a preventive measure in the form of remand in custody has
not been imposed on the person or a final decision has not been
deferred by a court. When remand in custody is deemed necessary, an
application must be lodged to that effect with a district court by a
prosecutor or by an investigator with the consent of a prosecutor
(Article 94).
“Preventive
measures” or “measures of restraint” (меры
пресечения)
include an undertaking not to leave a town or region, personal
surety, bail and detention (Article 98). If necessary, the suspect or
accused may be asked to give an undertaking to appear (обязательство
о явке) (Article 112).
When
deciding on a preventive measure, the competent authority is required
to consider whether there are “sufficient grounds to believe”
that the accused would abscond during the investigation or trial,
reoffend or obstruct the establishment of the truth (Article 97). 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).
Detention may be ordered by a court if the charge
carries a sentence of at least two years’ imprisonment,
provided that a less restrictive preventive measure cannot be applied
(Article 108 § 1).
2. Time-limits for detention “pending the
investigation”
(a) Initial detention and its extensions
After
arrest the suspect is placed in custody “pending
investigation”. The maximum permitted period of detention
“pending investigation” must not exceed two months. It
may subsequently be extended up to six months (Article 109 § 1).
Further
extensions to up to twelve months are possible only in relation to
persons accused of serious or particularly serious criminal offences,
in view of the complexity of the case and if there are grounds
justifying detention. An investigator’s request for extension
must be approved by the Regional Prosecutor (Article 109 § 2).
An extension of detention beyond twelve months and up
to eighteen months may be authorised only in exceptional
circumstances in respect of persons accused of particularly serious
offences, upon an investigator’s request approved by the
Prosecutor General or his Deputy (Article 109 § 3).
Extension
of detention beyond eighteen months is prohibited and the detainee
must be released immediately, unless the prosecution’s request
for an extension for the purpose of studying the case has been
granted by a court in accordance with Article 109 § 8 of the
CCrP (Article 109 § 4).
(b) Supplementary extension for studying
the case file
Upon completion of the investigation, the detainee
must be given access to the case file no later than thirty days
before the expiry of the maximum period of detention indicated in
paragraphs 2 and 3 (Article 109 § 5).
If
access is granted on a later date the detainee must be released after
the expiry of the maximum period of detention (Article 109 § 6).
If access is granted thirty days before the expiry of
the maximum period of detention but the thirty-day period proves
insufficient to read the entire case file, the investigator may
request the court to extend the period of detention. The request must
be submitted no later than seven days before the expiry of the
detention period. If several defendants are involved in the
proceedings and the thirty-day period is insufficient for at least
one of them to read the entire case file, the investigator may
request the court to extend the period of detention in respect of
those defendants who have finished reading the case file, provided
that the need for a custodial measure for them persists and that
there are no grounds for choosing another preventive measure (Article
109 § 7).
Within five days of receipt of a request for an
extension, the judge must decide whether to grant it or reject it and
release the detainee. If the extension is granted the period of
detention is extended until such time as will be sufficient for the
detainee and counsel to finish reading the case file and for the
prosecution to submit the case to the trial court (Article 109 § 8).
3. Time-limits for detention “before the
court”/“during judicial proceedings”
From
the date the prosecutor forwards the case to the trial court, the
defendant’s detention is “before the court” (or
“during judicial proceedings”). 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).
4. Special features of proceedings in criminal cases
with respect to advocates
A
decision to open a criminal case against an advocate is taken by a
prosecutor with prior approval by a district judge (Article 448 § 1).
Advocates
are not immune from arrest (Article 449).
Prior
to institution of criminal proceedings against an advocate
investigative actions are carried out following approval by a
district judge (Article 450 § 5).
C. Case-law of the Constitutional Court of the Russian
Federation
Examining the compatibility of Article 97 of the RSFSR
CCrP (now replaced by Article 109 of the CCrP, the sole difference
between the two Articles being that Article 97, in contrast to the
new Article 109, imposed a six-month limitation on the maximum period
of detention for the purpose of studying the case file with the
Constitution, on 13 June 1996 the Constitutional Court ruled as
follows:
“...affording the defendant sufficient time for
studying the file must not result in... his being detained
indefinitely. Indefinite detention would amount to punishment of the
defendant for exercising his procedural rights and thereby inducing
him to waive those rights...”
On 25 December 1998 the Constitutional Court issued a
further clarification of its position (decision no. 167-O), finding
as follows:
“3. ...the studying of the file [by the
defendant and his counsel] is a necessary condition for extending the
term of detention [beyond eighteen months] but it may not be, taken
on its own as a sufficient ground for granting such an extension...
For that reason, in each case the prosecutor’s application for
extending the period of detention beyond eighteen months (Article 97
§§ 4, 6 of the RSFSR CCrP) must refer not to the fact that
the defendant and his counsel continue to study the file... but
rather to factual information demonstrating that this preventive
measure cannot be revoked and the legal grounds for its continued
application remain...
6. ...Article 97 § 5 of the RSFSR CCrP
expressly provides that, on an application by a prosecutor, a judge
may extend a defendant’s detention until such time as the
defendant and his counsel have finished studying the file and the
prosecutor has submitted it to the [trial] court, but by no longer
than six months. Accordingly, the law does not provide for the
lodging of repeated applications for extension of the defendant’s
detention, even after an additional investigation [has been carried
out]... In the absence of an express legal provision for repeated
extensions of detention on that ground, any other interpretation of
[Article 97] would breach the prohibition on arbitrary detention
within the meaning of the Constitutional Court’s decision of
13 June 1996.”
By its decision no. 184-O of 6 June 2003 the
Constitutional Court declined to examine a complaint by a Mr Yest.,
in which he challenged the compatibility with the Constitution of
Article 109 § 8 of the Code of Criminal
Procedure, in so far as it allowed the extension of detention pending
investigation beyond the maximum time-limit and indefinitely while
the defendant finished reading the material in the case file. The
Constitutional Court held that such an extension was only possible if
there still existed “sufficient grounds to believe” that
the accused might abscond during the investigation or trial, reoffend
or otherwise obstruct the establishment of the truth, as provided by
Article 97 of the Code of Criminal Procedure. In so far as the
challenged provision did not set a specific time-limit for holding
the defendant in custody while he studied the case file, the
Constitutional Court considered that it allowed for the possibility
of determining such a time-limit for each particular case, depending
on its specific features, on condition that the grounds for detention
established in Article 97 had been sufficiently confirmed. The
court concluded that the challenged provision could not be
interpreted as providing for superfluous or unlimited detention.
Neither did it deprive the defendant and his counsel of the right to
challenge before a higher court the lawfulness and validity of the
extension order, as well as to make an application for lifting or
altering the custodial measure.
By
decision no. 352-O of 11 July 2006, the Constitutional Court
confirmed its position, by reference to above-cited decision no.
167-O, that in the absence of an express provision to that effect,
time-limits during a pre-trial investigation may not be repeatedly
extended, particularly on the same grounds, in excess of the maximum
time-limit set out in the CCrP.
By
its decision no. 271-O-O of 19 March 2009, the Constitutional Court
declined to examine a similar complaint by a Mr R. With reference to
its previous decisions of 13 June 1996, 25 December 1998
and 6 June 2003, the Constitutional Court held that even though
Article 109 § 8 did not define the maximum period
within which an extension could be granted for the purpose of
studying the case file, it did not imply the possibility of excessive
or unlimited detention because, in granting an extension, the court
should not rely solely on a well-founded suspicion that the defendant
had committed the offence, but should mainly base its decision on
specific circumstances justifying the continued detention, such as
his potential to exert pressure on witnesses or an established risk
of his absconding or reoffending, as well as the importance of the
subject matter of the proceedings, the complexity of the case, the
conduct of the defendant and other relevant factors.
D. Case-law of the Supreme Court of the Russian
Federation
In its decision no. 22 of 29 October 2009 “On
the Application by the Courts of Preventive Measures in the Form of
Remand in Custody, Bail and House Arrest” the Plenum of the
Supreme Court held as follows:
“18. [...] Pursuant to Article 109 §
7 of the Code of Criminal Procedure, following a request by an
investigator the court may extend an accused’s detention until
such time as he and his defence counsel have finished studying the
case file and the prosecutor has submitted it to the [trial] court,
if upon completion of the pre-trial investigation the accused has
been given access to the case file no later than thirty days before
the expiry of the maximum period of detention indicated in Article
109 §§ 2 and 3 [six, twelve, eighteen months]. In that case
the relevant extension order should indicate the exact period for
which the extension is made.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained under
Article 5 § 1 (c) that his detention on remand in the
period between 28 June 2006 and 24 April 2008 had been
unlawful. The relevant part of Article 5 provides as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
Referring
to the relevant provisions of domestic law, the decision of the
Plenum of the Supreme Court of 29 October 2009 (see paragraph 68
above) and the decision of the Constitutional Court of 6 June
2003 (see paragraph 65 above), the Government submitted that the
provisions of the domestic law providing for the possibility of
extending a detainee’s detention pending investigation beyond
the maximum of eighteen months on the ground of the need for him or
her to study the case file were sufficiently accessible, precise and
foreseeable in their application, and did not upset the “quality
of law” and the “legal certainty” requirements.
Such extension was only possible if, aside from the necessity for a
defendant to study the case file, there remained relevant and
sufficient reasons for continuing to hold him or her in custody, the
end-date of the detention period in question depending solely on how
soon the defendant would finish studying the case file.
The
applicant argued that his lawyer had been granted access to the case
file less than thirty days before the expiry of the maximum period of
detention indicated in Article 109 § 3 of the Code of Criminal
Procedure, for which reason the extensions of his detention pending
the investigation beyond eighteen months had been unlawful. He
further submitted that the decision of the Plenum of the Supreme
Court of 29 October 2009, which interpreted Article 109 § 7
of the Code of Criminal Procedure as requiring the domestic courts to
indicate the exact period for which the extension of detention
pending the study of the case file is made, referred to by the
Government, did not exist when he was reading the case file in
2006-08.
2. The Court’s assessment
(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 back 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 is compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent individuals from being deprived of their liberty in an
arbitrary fashion (see, among other authorities, Khudoyorov
v. Russia, no. 6847/02, § 124, ECHR 2005 X
(extracts)).
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 a person, who
is given appropriate advice if necessary, 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 these principles in the
present case
The
Court observes that the applicable provisions of domestic law
permitted up to eighteen months’ detention during an
investigation (hereinafter “the maximum detention period”)
in respect of individuals accused of particularly serious offences
(Article 109 § 3, cited in paragraph 53 above).
The domestic law further provided that the period in question could
be extended if the defendant was granted access to the case file no
later than thirty days before the expiry of the maximum detention
period and if the thirty-day period proved insufficient for him or
her to read the entire case file. If several defendants were involved
in the proceedings and the thirty-day period was insufficient for at
least one of them to read the entire case file within the thirty-day
period, the maximum detention period could be extended in respect of
those defendants who had completed reading the case file, provided
that the necessity for a custodial measure for them persisted and
there were no grounds for choosing another preventive measure
(Article 109 §§ 5, 7 and 8, cited in
paragraphs 55, 57 and 58 above).
In
the present case, involving the applicant and fifteen co-defendants,
the maximum eighteen-month period of the applicant’s detention
during the investigation expired on 28 June 2006 (see paragraph
18 above). The applicant was granted access to the case file on
18 May 2006, which is over thirty days before the expiry of the
maximum detention period (see paragraphs 20-22 above), but the
thirty-day period proved insufficient for him to read all
seventy-five volumes of the case file. For that reason, at the
request of the investigator, on 23 June 2006 the Regional Court
extended the applicant’s detention until he and his lawyer had
finished studying the case file, but not beyond 24 September
2006. The court relied on Article 109 § 7 of the
Code of Criminal procedure. The applicant’s detention pending
the study of the case file was subsequently extended for the same
purpose and by reference to the same legal provision on
18 September 2006, 18 January, 21 May and
11 September 2007, until 24 January, 24 May and
24 September 2007 and 24 January 2008 respectively. It was
further extended on 18 January 2008 until 24 April 2008,
pending the study of the case file by co-defendants.
The
Court recalls that it has previously examined a similar situation in
the case of Tsarenko v. Russia (no. 5235/09, 3 March
2011).The Court applied the following line of reasoning:
“60. In the present case, the eighteen
months’ detention of the applicant during the investigation
expired on 12 September 2008. Upon request of the investigator, the
City Court granted an extension until 4 October 2008 for the purpose
of studying the case file. It relied on Article 109 §§ 7
and 8 of the Code of Criminal Procedure. Subsequently, further
extensions for the same purpose and by reference to the same legal
provision were granted by the City Court on 1 October and
3 December 2008, 3 February, 1 and 28 April 2009. The
parties disagreed on whether such repeated extensions were permitted
under the applicable provisions of the domestic law. The Court has
already examined a similar situation in the Korchuganova v. Russia
case, in which it had regard to the interpretation given by the
Russian Constitutional Court of the relevant provisions of the Code
of Criminal Procedure (§ 51, case cited above). The Court noted
that, according to the Constitutional Court’s binding
clarifications of 13 June 1996 and 25 December 1998 (cited in
paragraphs 41 and 42 above), in the absence of an express legal
provision for repeated extensions of detention on the ground that the
defendant has not finished studying the file, the granting of such
repeated applications for extension of the defendant’s
detention was not permitted by law and incompatible with the
guarantee against arbitrary detention. The restrictive interpretation
adopted by the Constitutional Court is consonant with the
requirements of 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, among others, Sherstobitov v. Russia, no. 16266/03,
§ 113, 10 June 2010; Shukhardin v. Russia, no. 65734/01,
§ 67, 28 June 2007; Nakhmanovich v. Russia, no.
55669/00, § 79, 2 March 2006; and Khudoyorov, cited
above, § 142).
61. The case-law of the Russian
Constitutional Court required that a possibility to grant multiple
extensions on the same ground be expressly mentioned and provided for
in the criminal-procedure law. The adoption of a new Code of Criminal
Procedure in 2003 did not affect the validity or applicability of the
Constitutional Court’s case-law and the text of new Article 109
closely followed that of the former Article 97. The Constitutional
Court’s decision of 19 March 2009, to which the Government
referred, did not alter the Constitutional Court’s position
[...]. The courts of general jurisdiction in the instant case, and
the Government in their submissions before the Court, adopted an
extensive interpretation of Article 109, claiming that, in the
absence of an express prohibition on multiple extensions on the same
ground, the competent court should remain free to grant as many
extensions as it considered appropriate in the circumstances of the
case. However, neither the domestic courts nor the Government were
able to show that the new Article 109 contained an express provision
for repeated extensions of the detention period for this purpose. It
follows that their extensive interpretation of this provision sat ill
with the restrictive interpretation adopted by the Russian
Constitutional Court and was incompatible with the principle of the
protection from arbitrariness enshrined in Article 5 of the
Convention. Accordingly, the legal basis for the extension orders of
1 October and 3 December 2008, 3 February, 1 and 28 April 2009,
which covered the period of the applicant’s detention from 4
October 2008 to 20 May 2009, was deficient and the applicant’s
detention for that period was in breach of Article 5 § 1.”
In
the present case the Court sees no reason to depart from its previous
conclusion to the effect that the provisions of Russian law governing
detention pending study of the case file by a defendant are not
foreseeable in their application and fall short of the “quality
of law” standard required under the Convention in so far as
they do not contain any express rule regarding the possibility of
repeated extensions of a defendant’s detention pending study of
the case file.
It considers, therefore, that in so far as the
applicant’s complaint concerned the period between 28 June
and 24 September 2006, there has been no violation of
Article 5 § 1 of the Convention since the
applicant’s detention in the above period had a legal basis in
Article 109 § 7 of the Code of Criminal Procedure
permitting the court to extend the detention period beyond eighteen
months if that was necessary to allow the defendant to study the case
file. However, as regards the subsequent period between 24 September
2006 and 24 April 2008, in the absence of any express provision
in Article 109 for repeated extensions of the detention period for
this purpose, the Court finds that there has been a violation of
Article 5 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The
applicant complained that the length of his detention on remand had
been excessive. He relied on Article 5 § 3 of the
Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
The
Government submitted that the applicant’s detention had been
based on “relevant and sufficient” reasons, in compliance
with Article 5 § 3 of the Convention. The applicant
had been suspected of several particularly serious crimes and
membership of an organised criminal group with settled structure,
connections between its members, means of conspiracy and protection
against law-enforcement authorities. Several members of the group
were still in hiding at the time. Several witnesses and victims had
expressed fear of being subjected to unlawful pressure and reprisal
by the applicant and other members of the group in connection with
their statements. There was sufficient factual information
substantiating the above concerns. The assessment of the above
elements had led the domestic court to the conclusion that if
released the applicant might abscond or otherwise interfere with the
administration of justice in the case.
The
applicant argued that the main argument put forward by the domestic
authorities for his continued detention had been the gravity of the
charges against him. He went on to say that the reasoning applied by
the domestic court lacked any specifics pertaining to his individual
situation.
2. The Court’s assessment
(a) General principles
In determining the length of detention during judicial
proceedings 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;
Labita v. Italy [GC], no. 26772/95, §§ 145 and 147,
ECHR 2000-IV; and Wemhoff v. Germany, 27 June 1968, § 9,
Series A no. 7).
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 in a given case 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, § 30, Series A no.
254 A, and Pantano v. Italy, no. 60851/00, § 66,
6 November 2003).
The
persistence of reasonable suspicion that an arrested person 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 continued
to justify 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, §§ 152 and 153). Justification for
any period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria, no.
38822/97, § 66, ECHR 2003-I). When deciding whether a
person should be released or detained, the authorities are obliged to
consider alternative measures of ensuring his appearance at trial
(see Jablonski v. Poland, no. 33492/96, § 83, 21
December 2000).
(b) Application of these principles in the
present case
(i) Period to be taken into consideration
The
applicant was taken into custody on 28 December 2004. On
28 March 2011 he was convicted. The total length of the
applicant’s pre-trial detention amounted, therefore, to six
years and three months. The particularly inordinate length of the
applicant’s pre-trial detention is a matter of grave concern
for the Court.
(ii) Grounds for continued detention
The
Court observes that the initial choice of a custodial measure in
respect of the applicant in December 2004 was prompted by the
suspicion of his membership of an organised criminal group, banditry,
extortion and fraud, and the risk that he would threaten victims and
witnesses (see paragraph 8 above).
Subsequently,
when the case against the applicant was being investigated, between
December 2004 to June 2006, the domestic court extended the
applicant’s detention on five occasions, citing as reasons the
particular gravity and organised nature of the crimes with which the
applicant had been charged, the complexity of the case and the
necessity to carry out various investigative actions, as well as the
risk that the applicant would abscond and obstruct the proceedings by
exerting pressure on witnesses and victims. The latter risk was
substantiated by statements from witness D. that he had been
threatened by the applicant, and information obtained by the
Organised Crime Unit at the Ryazan Regional Department of the
Interior, to the effect that the members of the criminal group of
which the applicant was a suspected member were making inquiries
about people questioned in the case as witnesses and victims, with a
view to subjecting them to unlawful influence. The Court does not
lose sight of the fact that in April 2006 further charges were
brought against the applicant on account of various other criminal
activities (see paragraphs 12-19 above).
Afterwards,
from June 2006, when the investigation of the case was completed, to
April 2008, when the applicant and his co-defendants finished reading
the case file, the applicant’s detention was extended on six
occasions. Further to the necessity for the applicant and his
co-defendants to read the case-file material before the case was
transferred to the Regional Court for trial, the extension orders
relied on the nature and the gravity of the charges against the
applicant and the risk of his absconding or otherwise obstructing the
proceedings. On each occasion the court noted that the circumstances
which determined the choice of the preventive measure persisted (see
paragraphs 23-30 above). The Court notes that it has found above that
the applicant’s detention on remand for most of this period,
from 24 September 2006 to 24 April 2008, was unlawful, and
therefore in breach of Article 5 § 1 of the Convention (see
paragraph 79 above). This finding makes it unnecessary to discuss,
from the standpoint of Article 5 § 3 of the Convention, the
sufficiency and relevance of the grounds given by the domestic court
to justify the applicant’s detention during that period (see
Fedorenko v. Russia, no. 39602/05, § 64,
20 September 2011).
The
Court further observes that during the trial stage between April 2008
and March 2011 the applicant’s detention was extended on eleven
occasions. The decisions concerned the applicant and nine
co defendants. The domestic court took into consideration the
gravity and the nature of the charges against the defendants, the
reasonableness of the suspicion justifying the placement of each
defendant in custody, the risks of the defendants interfering with
the course of the proceedings by absconding, exerting pressure on
victims and witnesses and reoffending. The court also took into
account the time each defendant had already spent in custody,
personal data in respect of each defendant, and the possibility of
applying a more lenient preventive measure. The existence of the risk
that the applicant would put pressure on witnesses and victims was
demonstrated by reference to statements by prosecution witness Yezh.
and co-defendant S., the application of safety measures in respect of
certain witnesses, questioning of certain witnesses under pseudonyms
and in conditions keeping them invisible to the applicant and
co-defendants, the fact that the defendants breached the court order
during the questioning of certain prosecution witnesses and that
during the trial some witnesses changed their testimony in respect of
the applicant and two other co-defendants. As regards the risk of
absconding and reoffending, the domestic court relied on the fact
that criminal proceedings were instituted against other suspected
members of the criminal group who had not yet been found and
arrested, and that the applicant and other detained co-defendants had
not been working anywhere for a long time before their arrest. The
domestic court further referred to the big volume of the case
involving multiple episodes and numerous participants. In its most
recent detention order the domestic court also considered the issue
of compliance of the overall length of the applicant’s and nine
co-defendants’ detention with the reasonable time requirement
(see paragraphs 32-42 above).
Having
regard to the foregoing, the Court is satisfied that the reasons
advanced by the domestic court to justify the applicant’s
continued detention on remand were both “relevant” and
“sufficient”. It remains to be ascertained whether the
judicial authorities displayed “special diligence” in the
conduct of the proceedings.
(iii) Conduct of the proceedings
In
assessing whether the “special diligence” requirement has
been met, the Court will have regard to the overall complexity of the
proceedings, any periods of unjustified delay and the steps taken by
the authorities to speed up proceedings to ensure that the overall
length of detention remains “reasonable” (see Kevin
O’Dowd v. the United Kingdom, no. 7390/07, § 70,
21 September 2010, with further references).
The
Court accepts that the applicant’s case, concerning organised
crime and involving several defendants, a large number of victims and
witnesses, was rather complex. It reiterates in this respect that in
cases involving numerous defendants, collecting evidence is often a
difficult task, as it is necessary to obtain voluminous evidence from
many sources and to determine the facts and degree of alleged
responsibility of each of the co-suspects (see Yudayev v. Russia,
no. 40258/03, § 72, 15 January 2009). In the present
case the investigation was carried out over the period of eighteen
months from December 2004 to June 2006. The Court does not discern
any significant periods on inactivity in the investigation.
Thereafter,
for a period of almost two years from June 2006 to April 2008
the applicant and other defendants were studying the case file. While
the applicant cannot be blamed for taking the full advantage of his
right to have adequate time for the preparation of his defence, it
remains the court’s function to observe that the overall length
of detention remains “reasonable”. To this end, when
extending the applicant’s detention pending the study of the
case material the domestic court should have on each occasion
verified whether any further detention for that purpose continued to
be reasonable. In the present case, however, the domestic court never
made such assessment until October 2007 when the investigator filed a
request for limiting the time for the applicant to complete his
studying of the case file.
Subsequently,
for almost three years from April 2008 to March 2011 the case was
being examined by the trial court. The Court is mindful that the
right of an accused in detention to have his case examined with
particular expedition should not unduly hinder the efforts of the
courts to carry out their tasks with proper care (see Shenoyev v.
Russia, no. 2563/06, § 56, 10 June 2010;
Contrada v. Italy, 24 August 1998, § 67,
Reports of Judgments and Decisions 1998 V; and Wemhoff,
cited above, § 17). However, in the present case
the Government have not put forward any evidence showing that the
trial court acted with proper care and expedition.
Having regard to the foregoing and the particularly
inordinate length of the applicant’s pre-trial detention
amounting to six years and three months, the Court considers the
domestic authorities had failed to display “special diligence”
in the conduct of the proceedings against him. There has, therefore,
been a violation of Article 5 § 3 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant complained under Article 5 §
1 about the alleged unlawfulness of his arrest and under Article 1
of Protocol No. 1 about pecuniary losses sustained as a result of his
allegedly unlawful arrest and detention.
However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is 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 manifestly ill-founded, pursuant
to Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 43,016.5 euros (EUR) in
compensation for pecuniary damage for loss of earnings during the
years in detention. He further claimed EUR 100,000 in
compensation for non-pecuniary damage.
The
Government submitted that the applicant’s claim for pecuniary
damage should be dismissed as wholly unsubstantiated. They further
expressed their view that the applicant’s claim for
compensation for non pecuniary damage had been excessive.
The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged (see, most recently, Miminoshvili
v. Russia, no. 20197/03, § 146, 28 June 2011,
with further references).
On
the other hand, in the light of the materials in its possession and
making its assessment on an equitable basis, it awards the applicant
EUR 15,000 in compensation for non-pecuniary damage, plus any
tax that may be chargeable on this amount.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
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 complaints concerning the
lawfulness of the applicant’s detention between 28 June 2006
and 24 April 2008 and the length of the applicant’s
detention admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant’s
detention between 28 June and 24 September 2006;
Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant’s
detention between 24 September 2006 and 24 April 2008;
Holds that there has been a violation of Article
5 § 3 of the Convention on account of the fact that the domestic
authorities had failed to display “special diligence” in
the conduct of the proceedings against the applicant;
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 15,000 (fifteen thousand euros), plus
any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 29 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
