European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

CASE OF ALEKSANDR SHEVCHENKO v. RUSSIA

 

(Application no. 48243/11)

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

23 July 2015

 

 

 

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 Aleksandr Shevchenko v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro, President,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 30 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 48243/11) 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 Aleksandr Nikolayevich Shevchenko (“the applicant”), on 22 June 2011.

2.  The applicant was represented by Mr D.S. Romanov, a lawyer practising in Astrakhan. The Russian Government (“the Government”) were represented by Mr G.Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3.  The applicant alleged that the length of his pre-trial detention had not been justified, and that his appeals against several detention orders had not been examined speedily.

4.  On 29 August 2013 the complaints concerning unreasonably long pre-trial detention and lack of speedy review of the lawfulness of the applicant’s pre-trial detention were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1979 and lives in Volzhskiy, Volgograd Region.

A.  The applicant’s arrest and detention pending investigation

6.  On 1 October 2010 the applicant was arrested on suspicion of drug offences.

7.  On 2 October 2010 he was charged with two episodes of attempted drug trafficking, allegedly committed on 7 and 8 September 2010 in conspiracy with others.

8.  On 3 October 2010 Kirovskiy District Court, Astrakhan, (“the District Court”) granted the investigator’s request to place the applicant in detention until 1 December 2010. The District Court held as follows:

“It follows from the evidence provided by the investigator in support of his request for application of a measure of restraint that Mr A.N. Shevchenko is charged with particularly serious criminal offences which represent a significant danger to society and are punishable by deprivation of liberty for a period of five to twelve years.

The charges against the applicant are justified by the report on the detection of the crime, operational search materials, search records, expert reports, and the testimony of Mr A.C. Filenko, which directly implicates Mr Shevchenko in those criminal offences.

Having regard to the above, and also taking into account the circumstances of the case and information on the implication of Mr Shevchenko in the criminal offences, as well as the personality of the defendant, who is not registered as resident in the Astrakhan region and has no job and no dependents, the court has come to the conclusion that at liberty he might abscond and thereby interfere with the proceedings.

Taking into account information about the personality of the defendant and the criminal offences with which he is charged, it is impossible to apply a more lenient measure of restraint.”

9.  On 8 October 2010 a further set of criminal proceedings was initiated against the applicant on suspicion of drug offences allegedly committed between the beginning of September and 1 October 2010.

10.  On 9 October 2010 those proceedings were joined to the first set of proceedings against the applicant.

11.  On 23 November 2010 the District Court extended the applicant’s detention until 20 January 2011. The District Court held as follows:

“Mr A.N. Shevchenko is charged with particularly serious criminal offences punishable by more than two years’ imprisonment.

In taking a decision on this request, the court considers that the investigating authorities reasonably argue that it is impossible to finalise their investigation for objective reasons, such as there being a large number of witnesses and defendants and it being necessary to finish the investigation. The character of the case, its circumstances and the charges [brought against the co-defendants] indicate that the case is particularly complex; this is also due to there being a large number of co-defendants.

The circumstances which served as the grounds for choosing the measure of restraint in the form of placement in detention have not changed in view of the legal characterisation of the criminal offence. The personality of Mr Shevchenko, his engagement in illegal distribution of narcotic drugs which, as indicated by the evidence, constituted the source of his income, and the absence of any other income, allow the conclusion that the investigator’s request is well founded and that it is necessary to place Mr Shevchenko in isolation from society.

Mr Shevchenko’s term of detention expires on 1 December 2010. This is too short a period of time to carry out planned investigative actions and to take a decision on the charges, and therefore the term of detention of the defendant should be extended.”

12.  In his appeal against that detention order the applicant submitted that the District Court had based its decision on negative assumptions about his future behaviour, and had not taken into account his personality, positive references and permanent place of residence.

13.  On 3 December 2010 the Astrakhan Regional Court (“the Regional Court”) upheld the detention order of 23 November 2010.

14.  On 14 January 2011 the District Court extended the applicant’s detention until 20 March 2011. The District Court held as follows:

“The court takes into account that Mr A.N. Shevchenko is charged with particularly serious criminal offences ... punishable exclusively by deprivation of liberty for up to twelve years, and therefore the court comes to the conclusion that the investigating authorities’ argument, that if released the defendant, fearing punishment, might abscond, since he has no registration or permanent place of residence in the Astrakhan region, is well founded.

The court also takes into account that the criminal case is particularly complex, since it involves several co-defendants, and there should be individual investigations in respect of each co-defendant. In addition, there is a large volume of planned investigating activities.

Having regard to the above, the court comes to the conclusion that there exist no grounds for quashing or altering the measure of restraint.

It has not been established in the court hearing that there exist any factors preventing the applicant from being kept in a remand prison. The grounds on which the measure of restraint was initially applied and extended have not changed.

The court also takes into account that the term of the defendant’s detention is set to expire, whereas the investigation is not yet complete and it is necessary to carry out a number of investigating activities which would require additional time.”

15.  On 17 January 2011 the applicant appealed against the detention order of 14 January 2011 to the Astrakhan Regional Court (“the Regional Court”). The applicant submitted that the court’s conclusion regarding the risk that he would abscond was not supported by specific evidence. The court had not taken into account his positive references, permanent place of residence and his argument that the investigation of the case was delayed intentionally.

16.  On 13 March 2011 the prosecuting authorities terminated the criminal proceedings against the applicant on charges of 2 October 2010 of two episodes of attempted drug trafficking, in the absence of corpus delicti. They considered that the applicant’s actions had to be qualified as illegal purchase and storage of narcotic drugs without purpose of sale.

17.  On 15 March 2011 the District Court extended the applicant’s detention until 20 May 2011. The District Court held as follows:

“The court takes into account that Mr A.N. Shevchenko is charged with offences ... which are punishable by deprivation of liberty for a period of up to twelve years. The court comes to the conclusion that the investigating authorities’ argument, that Mr Shevchenko might abscond because of fear of punishment, is well founded. In addition, Mr Shevchenko has no family or dependents; he has no official employment, and therefore no permanent source of income. Mr Shevchenko has no place of residence nor registration in the territory of Astrakhan or Astrakhan region. Mr Shevchenko has previous convictions, and has an outstanding conviction, all of which characterise him as a person disposed to commit crimes. At present the investigation of the criminal case has not been completed.

The evidence before the court allow the conclusion that there exist no grounds for altering or changing the measure of restraint applied to the defendant.

It has not been established in the court hearing that there are grounds which would prevent the defendant from being held in detention in the remand prison.

The argument submitted by the defence and the defendant, that the defendant had no intention of absconding, are not sufficient to alter the measure of restraint to a preventive measure not involving pre-trial detention.

Having regard to the above, the court comes to the conclusion that it is impossible to apply other measures of restraint, including a written undertaking, personal surety, or bail.

The court also takes into account that a number of investigating activities have been planned in the present case. In addition, within fourteen days of the arrival of the case at the trial court ... a judge has to take a decision about the existence or otherwise of grounds for further extension of the detention ... therefore the court finds it necessary to extend the pre-trial detention in respect of Mr Shevchenko.”

18.  In his appeal against the detention order of 15 March 2011 the applicant submitted that the detention order had not been based on relevant and sufficient reasons.

19.  On 16 March 2011 the applicant was charged with illegal purchase and storage of narcotic drugs without intent to sell.

20.  On 18 March 2011 the Regional Court upheld the detention order of 14 January 2011.

21.  On 23 March 2011 the Regional Court upheld the detention order of 15 March 2011.

22.  On 12 May 2011 the applicant was presented with the final version of the charges against him. He was charged with illegal purchase and storage of particularly large quantities of narcotic drugs without intent to sell.

23.  On the same date the investigation was terminated and the applicant and his co-defendants familiarised themselves with the evidence in the criminal case.

24.  On 17 May 2011 the District Court extended the applicant’s detention until 20 June 2011. The District Court held as follows:

“The court has established that the grounds which were taken into account when the measure of restraint was chosen in respect of defendant A.N. Shevchenko ... have not changed, and therefore the court is not able to change or cancel the measure of restraint. Mr Shevchenko is charged with involvement in a serious crime ... which presents a significant danger to society and is directed against public health and morals. The court finds well founded the investigating authorities’ argument whereby the applicant might abscond because of fear of punishment, since he has no registration or permanent place of residence in Astrakhan or the Astrakhan region. He has no permanent job, family or dependents.

The fact that the charges against Mr Shevchenko were modified and that at present he is charged with illegal drug trafficking without intent to sell cannot serve as a ground for the release of Mr Shevchenko, since that criminal offence also represents a significant danger to society.

The term of the detention of Mr Shevchenko expires on 20 May 2011. This period of time is not sufficient to carry out the investigating and procedural activities referred to by the investigator in his request. Therefore, taking into account the volume and complexity of the criminal case, which involves several co-defendants charged with particularly serious crimes, the court considers that the term of detention should be extended.

There are no grounds to cancel or alter the measure of restraint.

Having regard to the circumstances of the case, the nature of the criminal offence with which Mr Shevchenko is charged, and his personality, the court comes to the conclusion that the term of detention of Mr Shevchenko should be extended for one more month, thus bringing the total length of his detention to eight months and nineteen days, until 20 June 2011.”

25.  On the same date the investigating authorities referred the criminal case to the prosecutor’s office of the Astrakhan region for approval.

26.  In his appeal against the detention order of 17 May 2011 the applicant and his counsel submitted that the court had not supported its conclusions with specific evidence, and that the investigating activities referred to in the decisions had already been carried out. Furthermore, the court had not taken into account the information about his personality and the fact that he had a permanent place of residence in the Volgograd region.

27.  On 25 May 2011 the Regional Court upheld the detention order of 17 May 2011.

28.  On 14 June 2011 the Deputy Prosecutor returned the criminal case to the investigating authorities. He indicated that there were a number of shortcomings in the investigation which needed to be corrected.

29.  On 16 June 2011 the investigation was reopened in order to remedy those shortcomings.

30.  On the same date the District Court further extended the applicant’s detention until 16 September 2011, referring to the same grounds as before.

31.  On 24 June 2011 the Regional Court upheld the detention order of 16 June 2011.

32.  In the first half of July 2011 the investigation was terminated and the applicant familiarised himself with the evidence in the case.

33.  However, on 15 July 2011 the investigation was again reopened in order to correct the personal details of one of the applicant’s co-defendants in various procedural documents.

34.  On 9 August 2011 the investigation was terminated and the case was referred to the Regional Prosecutor, who approved it on 25 August 2011.

B.  The applicant’s detention pending trial

35.  On 31 August 2011 the criminal case against the applicant and his co-defendants was referred to the District Court for trial.

36.  On 5 September 2011 the District Court set the preliminary hearing of the case for 12 September 2011. By a decision adopted on the same date the District Court extended the applicant’s and his co-defendants’ detention until 29 February 2012, referring to the seriousness of the charges against them.

37.  On 8 September 2011 the applicant appealed against the detention order of 5 September 2011. He submitted that the charges of attempted drug trafficking had been abandoned, that he was now charged with illegal purchase and storage of narcotic drugs without purpose of sale, that the investigation had been completed and it was now impossible for him to interfere with the proceedings.

38.  On 20 September 2011 the District Court referred the criminal case for examination on the merits to the Sovetskiy District Court, Astrakhan, on the grounds that the majority of criminal offences impugned to the defendants had been committed in the Sovetskiy District.

39.  On 20 October 2011 the Regional Court upheld the detention order of 5 September 2011.

40.  On 14 February 2012 the Sovetskiy District Court extended the applicant’s and his co-defendant’s detention until 29 May 2012, referring to the same grounds as in the previous detention orders.

41.  On 18 February 2012 the applicant appealed against the detention order of 14 February 2012. He submitted, in particular, that the Sovetskiy District Court had issued a collective detention order without analysing his individual situation, and had not supported its conclusions with specific evidence.

C.  The applicant’s conviction

42.  On 2 April 2012 the Sovetskiy District Court found the applicant guilty of purchase and storage of drugs, and sentenced him to three years’ imprisonment.

43.  On 12 April 2012 the Regional Court upheld the detention order of 14 February 2012.

44.  On 21 June 2012 the Regional Court upheld the applicant’s conviction.

45.  On 13 February 2013 the Tagilstroyevskiy District Court, Nizhniy Tagil, granted the applicant’s request for early release.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

46.  The applicant complained that the length of his pre-trial detention had not been justified and the decisions to that effect not based on relevant and sufficient reasons. 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

47.  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

48.  The Government submitted that the decisions in respect of the entire period of the applicant’s detention had been based on “relevant and sufficient” reasons and that the proceedings had been conducted with “special diligence”.

49.  The applicant maintained his complaint.

2.  The Court’s assessment

50.  The Court will examine the merits of the applicant’s complaint under Article 5 § 3 in the light of the applicable general principles set out in, among others, Idalov [GC] (Idalov v. Russia [GC], no. 5826/03, §§ 139-41, 22 May 2012, with further references).

51.  The applicant’s pre-trial detention lasted from 1 October 2010, when he was arrested, until 2 April 2012, when he was convicted by Sovetskiy District Court, Astrakhan. The total duration of the detention thus amounted to one year, six months and one day.

52.  The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had been involved in drug offences. The Court is also ready to accept that that suspicion persisted throughout the criminal proceedings against the applicant. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify the applicant’s continued detention and, if so, whether they displayed “special diligence” in the conduct of the proceedings.

53.  The Court observes that pending the investigation the judicial authorities refused to release the applicant, referring to the gravity of the charges against him and the risk that if released he might abscond or reoffend. They justified their assertion that the applicant was at risk of absconding and reoffending with reference to the severity of the sentence he faced. They also referred to the applicant’s criminal record and relied on the fact that he had no registration or permanent place of residence in Astrakhan and Astrakhan region, no job and no family or dependents. The Court considers that those factors are relevant elements in the assessment of the risk of absconding and reoffending and the authorities could justifiably considered that such initial risks were established. Therefore, the Court is ready to accept that the applicant’s detention pending the investigation was based on relevant and sufficient reasons.

54.  By contrast, the Court notes that after referral of the criminal case for trial, the trial court issued collective detention orders of 5 September 2011 and 14 February 2012 in respect of the applicant and his co-defendants that did not contain an analysis of the applicant’s individual situation (see paragraphs 19 and 22 above). In these circumstances, the Court cannot but conclude that the trial court failed to assess the applicant’s personal situation and to give specific reasons, supported by evidence, for holding him in custody.

55.  In the light of the foregoing, the Court considers that the domestic courts failed to convincingly demonstrate throughout the proceedings the existence of specific indications of a genuine requirement of public interest which outweighed the rule of respect for individual liberty in the applicant’s case. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

56.  There has therefore been a violation of Article 5 § 3 of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

57.  The applicant complained that his appeals against the detention orders of 14 January and 5 September 2011 and of 14 February 2012 were not examined speedily. He relied on Article 5 § 4 of the Convention, which reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

A.  Admissibility

58.  The Government acknowledged that there had been a violation of the applicant’s rights under Article 5 § 4 of the Convention, since his appeals against the detention orders of 14 January and 5 September 2011 and of 14 February 2012 had not been examined speedily.

59.  The applicant maintained his complaint and took note of the Government’s admission.

60.  The Court notes that the Government acknowledged that there had been a violation of Article 5 § 4 in the present case. However, the authorities have not provided any redress to the applicant for that violation of the Convention, and therefore their acknowledgment is not sufficient to deprive the applicant of his status as a “victim” for the purposes of Article 34 of the Convention (see, for example, Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 66-84, 2 November 2010). He may therefore still claim to be a victim within the meaning of Article 34 of the Convention.

61.  The Court further 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

62.  The Court takes note of the Government’s acknowledgment of the violation of Article 5 § 4 of the Convention. In the circumstances of the present case, and having regard to its case-law (see, for example, Idalov, cited above, § 154-58) the Court finds no reason to hold otherwise. It therefore concludes that there has been a violation of that provision.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

63.  On 15 March 2014 the applicant raised a number of other complaints under various provisions of the Convention. The Court has examined those complaints. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

64.  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

65.  The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage.

66.   The Government submitted that if the Court found a violation of the Convention in the present case, such a finding would constitute adequate just satisfaction.

67.  The Court considers that the applicant must have suffered feelings of injustice and frustration as a result of the violation of his rights. However, the amount claimed appears to be excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,500 in respect of non-pecuniary damage.

B.  Costs and expenses

68.  The applicant did not submit any claims for costs and expenses. Accordingly, the Court makes no award under this head.

C.  Default interest

69.  The Court considers it appropriate that the default interest rate 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,

1.  Declares the complaints concerning the unreasonable length of the applicant’s pre-trial detention and lack of speedy review of the lawfulness of the applicant’s detention ordered on 14 January and 5 September 2011 and on 14 February 2012 admissible, and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 5 § 3 of the Convention on account of the unreasonable length of the applicant’s pre-trial detention;

 

3.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of lack of speedy review of the lawfulness of the applicant’s detention ordered on 14 January and 5 September 2011 and 14 February 2012;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 23 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Søren Nielsen                                                                      Isabelle Berro
       Registrar                                                                              President