THIRD SECTION

CASE OF SYARKEVICH v. RUSSIA

(Application no. 10216/06)

JUDGMENT

STRASBOURG

28 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Syarkevich v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helen Keller, President,
	Pere Pastor Vilanova,
	Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 10216/06) 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 Yevgeniy Vyacheslavovich Syarkevich (“the applicant”), on 6 March 2006.
2.  The applicant was represented by Mr D. Agranovskiy, a lawyer practising in the town of Elektrostal, the Moscow Region. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  On 22 April 2010 the applicant’s complaints concerning excessive length of his pre-trial detention in the absence of relevant and sufficient reasons and the domestic authorities’ failure to afford him an opportunity to examine several prosecution witnesses were communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1961 and lived until his arrest in the town of Yuzhno-Sakhalinsk, the Sakhalin Region.
Section 1.01	A.  The applicant’s arrest and detention
5.  On 3 April 2003 the applicant was apprehended in a flat with unregistered firearms in his possession. Four tied persons with traces of beatings, including Mr P., were discovered in a cloakroom of the flat. An investigator of the Sakhalin Regional police department drew up an arrest record.
6.  On the following day the applicant’s detention on remand was authorised. A week later the applicant was charged with a number of crimes, including organisation and leadership of an armed gang, several counts of aggravated kidnapping, extortion, robbery and fraud, as well as illegal possession of firearms.
7.  The applicant’s detention was further extended by the Yuzhno‑Sakhalinsk Town Court and the Sakhalin Regional Court on thirteen occasions up until his conviction. When extending the applicant’s detention, the domestic courts referred to the particular gravity and quantity of the charges against him; complexity of the criminal investigation and difficulties of jury trial; the applicant’s liability to abscond, re-offend and interfere with the course of justice, given his personality and criminal record; significant volume of evidence presented by the defence during the trial. The courts also kept track of the course of the investigation and assessed investigative and operative measures planned by the prosecution, including arrests of the applicant’s accomplices (which were still at liberty or had absconded in breach of the measure of restraint imposed on them and had been put on the wanted persons’ list), complex expert examinations requiring participation of the applicant and the victims and examination of the case-file by the applicant and his accomplices. The applicant’s requests for release on bail, as well as his appeal complaints against the detention orders, were to no avail.
8.  On 21 April 2004 the applicant and his lawyers started studying the case file materials comprising nineteen volumes, 200-300 pages long each. On 7 September 2004 the Town Court set a time-limit for studying, affording the applicant additional twenty working days to complete it. On 29 December 2004 the case was referred to the Regional Court for trial.
Section 1.02	B.  Trial
9.  On 6 April 2006 the Regional Court, by a jury verdict, found the applicant and six of his accomplices guilty as charged. On 12 May 2006 the Regional Court, relying on the jury verdict, sentenced the applicant to twenty-one years’ imprisonment.
10.  The applicant was found guilty, in particular, of an aggravated fraud, robbery, kidnapping and extortion in respect of Mr L., a businessman from the Moscow Region. The jury found that in May 2001 the applicant had approached Mr L. under the pretence of being a car salesman. The applicant had promised Mr L. to sell him a car for approximately 600,000 Russian roubles (RUB). However, after Mr L. had transferred the money to an account indicated by the applicant, the latter had disappeared. In October 2002 the applicant contacted Mr L., told him that he had just returned from Japan with his car and invited him to come to Sakhalin for it. On his arrival at the airport of Yuzhno-Sakhalinsk on 13 October 2002 Mr L. was met by Mr K., one of the applicant’s accomplices, and taken to the applicant’s country house where he was held until 6 November 2002, being subjected to beatings and extortion by the applicant and his gang.
11.  Neither Mr K., nor Mr L. were heard in open court. Mr K. had been found dead in a remand prison cell before the trial commenced. As for Mr L., residing in the Moscow Region, the trial court attempted to secure his presence on several occasions by summoning him and ordering his escort to the court. In reply he informed the trial court about being unable to travel to Yuzhno-Sakhalinsk in view of his spinal disease and a medical contraindication to air travel. He submitted a number of documents in support, as well as a written notice in which he confirmed his pre-trial statements. Having regard to these circumstances, the trial court allowed the prosecution’s request to read out Mr L. and Mr K.’s statements incriminating the applicant, despite the latter’s objections.
12.  The jury further established that in September and December 2002 and in March 2003 the applicant had organised an armed robbery and kidnapping of eight other victims, including Mr P. and had extorted a large sum of money in exchange for their freedom. Mr P. also was not heard in court as he was allegedly on vacation in Ukraine. Disregarding the applicant’s objections, the Regional Court read out Mr P.’s pre-trial statements against the applicant.
13.  The applicant’s lawyer appealed against the judgment of the Regional Court, complaining, among other matters, about the decision to read out pre-trial statements by Mr L., Mr P. and Mr K. On 14 November 2007 the Supreme Court of the Russian Federation upheld the judgment of the Regional Court, noting that it had correctly considered that reasons for the witnesses’ absence had been extraordinary and that it had lawfully read out their pre-trial statements.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
14.  For the relevant domestic law and practice, see Urazov v. Russia, no. 42147/05, § 47, 14 June 2016; Zherebin v. Russia, no. 51445/09, §§ 16‑25, 24 March 2016; Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 79, 23 February 2016.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
15.  The applicant complained, relying on Articles 5 and 6 of the Convention, that his pre-trial detention had been excessively long and unjustified. The Court considers that the complaint falls to be examined under 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.”
16.  The Government contested that argument. They submitted that the applicant’s detention was warranted by a reasonable suspicion of his involvement in a number of particularly grave violent crimes. The domestic courts, when ordering and extending the applicant’s detention, based themselves on a number of considerations, such as the applicant’s personality, criminal history, his ties to the criminal underworld, his leading role in the crimes of which he had been accused and their nature, which, taken together, substantiated the risk of his absconding, reoffending, tampering with evidence and exerting pressure on victims and witnesses.
Section 3.01	A.  Admissibility
17.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
18.  The relevant general principles relating to the assessment of pre-trial detention from the standpoint of Article 5 § 3 of the Convention have been summarised in the case of Zherebin v. Russia (cited above, §§ 49-54).
19.  The Court observes at the outset that the applicant had been arrested in April 2003 and convicted by jury verdict in April 2006, thus spending in pre-trail detention three years. It further notes, and it was not disputed by the parties, that the applicant’s detention was based on reasonable suspicion against him and that it not only persisted throughout the criminal proceedings but, moreover, was gradually enhancing, as the new episodes of the applicant’s criminal activity came to light.
20.  When deciding on the issue of the applicant’s detention the domestic authorities advanced a number of interrelated arguments for keeping him in custody, namely, the gravity of charges, the applicant’s superior position in the organised criminal group, risk of absconding, reoffending and interfering with justice, as well as the complexity of the proceedings.
21.  The Court accepts that the particular seriousness of the charges was one of the relevant factors for assessing the applicant’s potential to abscond, reoffend or obstruct the course of justice. However, although the severity of the sentence faced is a relevant element in assessing the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Topekhin v. Russia, no. 78774/13, § 104, 10 May 2016, with further references). It is therefore necessary for the Court to examine whether this factor was complemented by other relevant grounds for the applicant’s detention.
22.  The domestic courts have relied quite extensively on the reasonable allegation that the applicant and his co-defendants were members of the criminal gang, with the applicant playing a particularly important role within its structure. The Court recalls in this regard that the existence of a general risk flowing from the organised nature of the alleged criminal activities of an applicant may be accepted as the basis for his or her detention at the initial stages of the proceedings and in some circumstances also for subsequent prolongations of the detention. It is also accepted that in cases (as the present one), involving numerous accused, the process of gathering and hearing evidence is often a difficult task. In those circumstances, the Court considers that the need to obtain voluminous evidence from many sources, including nine victims, residing in the Moscow Region, nine thousand kilometers away from the place of the investigation, as well as the necessity to determine the facts and degree of the alleged responsibility of each of the co-accused, constituted relevant and sufficient grounds for the applicant’s detention during the period of the investigation (see Podeschi v. San Marino, no. 66357/14, § 147, 13 April 2017, with further references).
23.  Moreover, the Court considers that in cases such as the present one concerning alleged organised criminal gangs, the risk that a detainee, if released, might bring pressure to bear on witnesses or other co-suspects, or otherwise obstruct the proceedings, is by the nature of things often particularly high (see, for example, Celejewski v. Poland, no. 17584/04, § 95, 4 May 2006). The Court is mindful, in this context, of the fact, that Mr K., the applicant’s co-accused, who had given incriminating statements against the applicant, was found dead in his prison cell and that some of the gang members absconded and were at liberty (see paragraphs 7 and 11 above). The Court, therefore, concludes that the risk of the applicant interfering with the course of justice and exerting pressure on the victims and witnesses was very high and it justified his pre-trial detention.
24.  In addition to the gravity of charges and the applicant’s affiliation with the organised crime, the judicial authorities also took into consideration his personality and criminal record as additional factors substantiating the risks which the applicant would pose if released.
25.  The Court further observes that the domestic courts had reasonable concerns that the applicant was likely to abscond. According to the applicant’s own statements he had occasionally travelled to Japan and had stayed there for quite a long time (see paragraph 10 above). The applicant’s unemployment also added weight to the Russian courts’ finding that he posed a flight risk (see Topekhin, cited above, § 106).
26.  The Court therefore concludes that there were relevant and sufficient grounds for the applicant’s detention pending investigation and trial. The assessment of these reasons, however, cannot be detached from the actual length of time the applicant spent in custody. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings.
27.  In the present case, the active stage of the investigation lasted for twelve months, which is quite reasonable, given the overall complexity of the case, the applicant’s and his accomplices unwillingness to cooperate and taking into account that in the course of the investigation the applicant’s further criminal activities were discovered, which required additional investigative measures. It took the applicant and his lawyers another six months to study the case-file comprising nineteen volumes, 200-300 pages long each. In the absence of any arguments to the contrary, the Court considers that this protraction could not be attributed to the authorities, especially given that his co-defendants generally completed studying the entire case-file in no more than three weeks (see, for similar reasoning, Mkhitaryan v. Russia, no. 46108/11, § 99, 5 February 2013). Lastly, the Court observes that the trial in the applicant’s case have been completed in approximately fifteen months, a duration, which also seems reasonable, taking into account the objective difficulties of trial by jury, significant volume of evidence presented by the parties, the number of co-defendants, and the complexity of the case itself. The applicant did not argue that there had been any protractions in the conduct of the trial. The Court therefore concludes that the authorities displayed special diligence in handling the applicant’s case.
28.  Having regard to the above, the Court considers that there has been no violation of Article 5 § 3 of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
29.  The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that the trial judge had read out statements by the victims, Mr L. and Mr P., as well as those by late Mr K., the applicant’s co-defendant, none of whom had been examined in open court.
30.  Article 6 §§ 1 and 3 (d) of the Convention, in so far as relevant, reads as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
31.  The Government submitted that there had been a good reason for non-attendance of Mr L., Mr P. and Mr K. and that their statements had been neither sole nor decisive for the applicant’s conviction, since they had been corroborated by other evidence, including statements by other victims and witnesses who had been examined at the trial.
Section 4.01	A.  Admissibility
32.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Merits
33.  The Court reiterates that the guarantees in paragraph 3 (d) of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 of this provision; it will therefore consider the applicant’s complaints under both provisions taken together (see Schatschaschwili v. Germany [GC], no. 9154/10, § 100, ECHR 2015).
34.  Article 6 § 3 (d) refers to “witnesses”, and, if interpreted strictly, should not be applied to other evidence. However, this term must be given an autonomous interpretation. It can also include victims (see A.H. v. Finland, no. 46602/99, § 41, 10 May 2007) and other persons testifying before the court (see Mirilashvili v. Russia, no. 6293/04, § 158, 11 December 2008).
35.  The Court reiterates that the admissibility of evidence is primarily governed by the rules of domestic law. As a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendants seek to adduce (see Popov v. Russia, no. 26853/04, § 176, 13 July 2006, with further references).
36.  In this regard, the Court has required that an applicant who complained that “he has not been allowed to question certain witnesses ... must ... support his request by explaining why it is important for the witnesses concerned to be heard and their evidence must be necessary for the establishment of the truth ...” (see Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V).
37.  The general principles to be applied in cases where a prosecution witness did not attend the trial and his or her statements were admitted as evidence were summarised by the Court in Schatschaschwili v. Germany ([GC], no. 9154/10, ECHR 2015). The Court will therefore examine the present complaint in the light of these principles.
(a)	1.  Non-attendance of the victim, Mr P.
38.  In the case of Schatschaschwili v. Germany [GC] (cited above, §§ 117-118), while examining the order of the three steps of the test formulated in Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, § 152, ECHR 2011), namely, the existence of a good reason for witness’s non-attendance, probative value of the absent witness’s statements and the existence of counterbalancing factors compensating witness’s absence, the Grand Chamber has found that in a given case it may be appropriate to re-arrange their order, in particular if one of the steps proves to be particularly conclusive as to the fairness of proceedings.
39.  Turning to the circumstances of the present case, the Court observes, at the outset, that the statements by Mr P. were neither sole nor decisive evidence against the applicant, as they were corroborated by other evidence, including statements by three other victims who had been kidnapped and held in captivity together with Mr P. (see paragraph 12 above), as well as by the statements by the police officers who had released the victims and arrested the applicant. In such situation, the Court does not consider it necessary to establish whether there were good reasons for Mr P.’s absence from the trial and whether there were sufficient counterbalancing factors in place to compensate for his absence. The significant amount of other direct, first-hand evidence supporting the pre-trial statements of Mr P., reduced to minimum any negative impact his absence might have had on the overall fairness of proceedings in the applicant’s case.
40.  The Court concludes, therefore, that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of Mr P.’s non-attendance and the applicant’s inability to question him at the trial.
(b)	2.  Non-attendance of the victim, Mr. L., and co-defendant, Mr K.
41.  The situation differs, however, as regards the absence of another victim, Mr L., and an applicant’s accomplice, Mr K.
42.  The Court is prepared to accept the existence of good reasons for their non-attendance, namely, the death of Mr K. and serious medical condition of Mr L. (see Schatschaschwili, cited above, § 119, with further references). However, it observes, that they were the only eye-witnesses confirming the applicant’s involvement in the offences against Mr L. Their statements were, thus, both sole and decisive evidence on which the relevant part of the applicant’s conviction was based and there were no counterbalancing factors in place to compensate for their absence at the trial and for the difficulties caused to the defence by the admission of their untested statements as evidence (such as pre-trial confrontation interviews or an opportunity to put questions to Mr L. at the trial stage indirectly).
43.  The Court also notes that the admitted confession statements by Mr K., implicating the applicant in respect of the crimes against Mr L., were made by Mr K. at the pre-trial stage in his formal status as the applicant’s co-defendant. The Court reiterates in this connection that a higher degree of scrutiny should be applied to assessment of such statements, because the position in which the accomplices find themselves while testifying is different from that of ordinary witnesses. They do not testify under oath, that is, without any affirmation of the truth of their statements which could have rendered them punishable for perjury for willfully making untrue statements. In such situations, for the guarantees of Article 6 of the Convention to be respected on account of the admissibility of a guilty plea from a co-accused, such a plea should only be admitted to establish the fact of a commission of a crime by a pleading person, and not the applicant, and a judge should make it clear to the jury that the guilty plea by itself did not prove that the applicant was involved in that crime (see Vladimir Romanov v. Russia, no. 41461/02, § 102, 24 July 2008).
44.  The Court considers that, in these circumstances, the absence of an opportunity for the applicant to effectively challenge the statements by his co-accused, Mr K., and to examine the victim, Mr L., at any stage of the proceedings rendered the trial as a whole unfair.
45.  Accordingly, there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention in this respect.
Article V.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVETNION
46.  The applicant further raised a number of other complaints under Article 6 of the Convention about various aspects of his trial.
47.  The Court has examined the application and considers that, in light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.
48.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
49.  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.”
Section 6.01	A.  Damage
50.  The applicant claimed 1,550,000 euros (EUR) in respect of non‑pecuniary damage.
51.  The Government considered the claim excessive.
52.  The Court does not consider it necessary to make an award in respect of non-pecuniary damage in the circumstances of the case (compare Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 315, ECHR 2016). It further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‑IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the proceedings if the Court finds a violation of the Convention.
Section 6.02	B.  Costs and expenses
53.  The applicant did not claim costs and expenses. Accordingly there is no call to make an award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints concerning excessive duration of the applicant’s pre-trial detention in the absence of relevant and sufficient reasons and his complaint concerning inability to examine witnesses against him admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 5 § 3 of the Convention;

3.  Holds that there has been no violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the applicant’s inability to question Mr P.;

4.  Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the applicant’s inability to examine or have examined Mr K. and Mr L.;

5.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant.

Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helen Keller
	Deputy Registrar	President