THIRD SECTION

CASE OF SHESTAKOV v. RUSSIA

(Application no. 13308/07)

JUDGMENT

STRASBOURG

25 July 2017

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

In the case of Shestakov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 4 July 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 13308/07) 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 Yuriy Gennadyevich Shestakov (“the applicant”), on 21 February 2007.
2.  The applicant was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  The applicant complained, in particular, about a breach of the equality-of-arms principle in the proceedings concerning his detention and about the excessive length of the review of his detention on appeal.
4.  On 12 October 2012 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1979 and lives in Perm.
6.  On 21 October 2006 the applicant was arrested on suspicion of extortion, kidnapping and fraud. Two days later the Leninskiy District Court of Perm authorised his detention.
7.  On 21 December 2006 the District Court held a hearing on extension of the applicant’s detention. The applicant asked to postpone the hearings for five days because his counsel was sick and could not attend. The District Court dismissed the request, assigned lawyer N. to represent the applicant, proceeded with the hearing and extended the applicant’s detention. The applicant’s objection to the participation of N. on account of their different defence strategies and N.’s limited knowledge of the case-file was also dismissed.
8.  The applicant and his counsel appealed, complaining, in particular, about a breach of the applicant’s right to defend himself through legal assistance of his own choosing. On 18 January 2007 the Perm Regional Court upheld the detention order of 21 December 2006, having also noted that the legal aid lawyer N. had been appointed because the detention matter “had to be examined immediately”.
9.  On 19 January 2007 the District Court once again extended the applicant’s detention. On 8 February 2007 the Regional Court held the appeal hearing without informing the applicant in advance about the hearing date. The applicant’s counsel attended the appeal hearing and made oral submissions. The Regional Court dismissed the appeal and upheld the detention order of 19 January 2007.
10.  The applicant’s detention was further extended on several occasions. In particular, on 16 March 2007 the measure of restraint was prolonged until 4 April 2007.
11.  On 21 March 2007 the applicant was committed to stand trial before the Regional Court. Five days later, on 26 March 2007, the trial court scheduled a preliminary hearing for 3 April 2007 and ruled that, in the meantime, the measure of restraint in respect of the applicant should remain unchanged until the preliminary hearing. The decision was delivered in a written procedure (without the parties being present).
12.  The applicant appealed, complaining, among other matters, that that decision in the part relating to his detention was unlawful and that it had been delivered in his and his lawyer’s absence. On 14 May 2007 the Supreme Court of the Russian Federation upheld the decision, having found, in particular, that the trial judge’s decision was no more than a restatement of the detention order of 16 March 2007 extending the applicant’s detention until 4 April 2007 (see paragraph 10 above).
13.  At the preliminary hearing on 3 April 2007 the trial court extended the applicant’s detention until 21 September 2007.
14.  On 1 June 2007 the applicant was convicted. On 22 September 2008 the Supreme Court upheld his conviction on appeal.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
15.  For the relevant domestic law and practice, see Khodorkovskiy v. Russia, no. 5829/04, §§ 86-89, 31 May 2011, and Lebedev v. Russia, no. 4493/04, §§ 32-36, 25 October 2007.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
16.  The applicant complained under Articles 5 and 6 of the Convention about a number of flaws in the detention proceedings, namely that at the hearing on 21 December 2006 his counsel had been replaced with the legal aid lawyer, who had not acted effectively, that the authorities had failed to timeously inform him about the hearing on 8 February 2007, that on 26 March 2007 his detention had been extended without a hearing and that his appeal against that decision had not been examined speedily. The Court considers that these complaints should be examined from the standpoint of Article 5 § 4 of the Convention (see Labzov v. Russia (dec.), no. 62208/00, 28 February 2002), which reads as follows:
“4.  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.”
Section 3.01	A.  Admissibility
17.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  Detention hearing on 21 December 2006
18.  The Government submitted, with reference to the findings of the appeal court which had examined the applicant’s appeal against the detention order of 21 December 2006, that the first-instance court had dismissed the applicant’s request to postpone the detention hearing, had assigned him the legal aid lawyer and had proceeded with the hearing, because the issue of detention had called for an immediate examination.
19.  The applicant maintained his complained. He also disputed that his counsel had been informed about the hearing.
20.  The Court reiterates that detention proceedings require special expedition and Article 5 does not contain any explicit mention of a right to legal assistance in this respect. The difference of aims explains why Article 5 contains more flexible procedural requirements than Article 6 while being much more stringent as regards speediness. Therefore, as a rule, the judge may decide not to wait until a detainee avails himself of legal assistance, and the authorities are not obliged to provide him with free legal aid in the context of the detention proceedings (see Lebedev, cited above, § 84).
21.  The Court sees no grounds to depart from this rule in the present case. Firstly, as follows from the domestic courts’ findings and the counsel’s written statement submitted to the Court, the lawyer was duly informed of the hearing on 21 December 2006 and had asked the first‑instance court in advance to postpone it because he was ill. The Court therefore finds that the applicant’s argument about the lack of proper notification is refuted by the documents in the case-file.
22.  Considering that the applicant’s counsel had been duly notified about the hearing in advance, but was unable to attend, and reiterating that proceedings concerning issues of deprivation of liberty require particular expedition (see Khlaifia and Others v. Italy [GC], no. 16483/12, § 131, ECHR 2016 (extracts)), the Court is thus convinced that the decision of the first-instance court to proceed with the hearing in the counsel’s absence was reasonable. The domestic court had no choice but to continue with the detention hearing, to preserve the expedient nature of the proceedings required by Article 5 § 4 of the Convention, while at the same time trying to safeguard the applicant’s defence rights by appointing legal aid counsel. The Court is not convinced that the assistance rendered to the applicant by that lawyer was of manifestly poor quality. As follows from the detention order of 21 December 2006, the lawyer argued the applicant’s case, having cited a number of grounds warranting his release. As the Court has previously held that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal-aid purposes or chosen by the accused. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or be privately financed (see, mutatis mutandis, Sannino v. Italy, no. 30961/03, § 49, ECHR 2006‑VI). The Court does not find any evidence in the case-file materials to support the applicant’s assertion that the legal services by lawyer N. were inadequate. The mere fact, that the District Court upheld the prosecution motion and extended the applicant’s detention does not render the legal assistance provided to the applicant by lawyer N. ineffective.
23.  Furthermore, the fact that the applicant personally attended the hearing and replied to the prosecutor’s arguments concerning the measure of restraint is sufficient to conclude that the authorities ensured the equality of arms during the hearing in issue (see Butusov v. Russia, no. 7923/04, § 26, 22 December 2009).
24.  In view of the above, the Court finds that the detention hearing on 21 December 2006 complied with the requirements of Article 5 § 4 of the Convention. Therefore there has been no violation of that Convention provision in this respect.
(b)	2.  Appeal hearing on 8 February 2007
25.  The Government submitted that it was impossible to establish whether the applicant had been informed about the Regional Court’s hearing of 8 February 2007 and whether he had requested leave to appear in person, because the relevant case file materials had been destroyed upon the expiration of the five-year storage limit. The Government also emphasised that the applicant’s counsel had attended the appeal hearing on 8 February 2007 and had made submissions on the applicant’s behalf.
26.  The applicant maintained his complaint.
27.  The Court observes that it is not disputed between the parties that the applicant’s counsel was present at the appeal hearing on 8 February 2007. In this connection, the Court reiterates that it is permissible for the court of appeal reviewing a detention order to only hear the detainee’s lawyer, if the hearing before the first-instance court offered sufficient procedural guarantees (see Lebedev v. Russia, cited above, § 114). Given that the applicant did not indicate any deficiency of the detention hearing held by the first-instance court on 19 January 2007, which could have prevented the upper court from examining his appeal in his absence, the Court is of the view that the appeal hearing on 8 February 2007 satisfied the requirements of Article 5 § 4 of the Convention. Accordingly there has been no violation of Article 5 § 4 of the Convention on that account.
(c)	3.  Decision to hold preliminary hearing
28.  The Government submitted with reference to the domestic court’s findings that the purpose of the decision issued on 26 March 2007 (see paragraphs 11 and 12 above) was to set the preliminary hearings. The trial court did not need to determine the detention matter since the applicant’s detention had already been extended by the proper detention order of 16 March 2007 until 4 April 2007. The trial court had merely restated what had been decided on 16 March 2007, by noting the lack of necessity to change the measure of restraint. In the Government’s view, the Regional Court, when ordering the preliminary hearing, had acted within its competence and in accordance with Articles 227-229 of the Russian Code of Criminal Procedure. The Government also contested the applicant’s argument that the appeal review of the decision to hold the preliminary hearing fell short of the “speediness” requirement of Article 5 § 4 of the Convention.
29.  The applicant maintained his complaint.
30.  The Court observes that under the provisions of the domestic law, referred to by the Government, a judge, upon the receipt of a criminal case for trial, was to decide whether to hold a preliminary hearing or to proceed with the examination of the case on the merits. The judge was also required to ascertain whether the measure of restraint in respect of the accused should be modified.
31.  As it follows from the decision of 26 March 2007 and as it was later confirmed by the Supreme Court in its appeal decision of 14 May 2007 (see paragraphs 11 and 12 above), the judge of the Regional Court scheduled the preliminary hearing in the applicant’s case for 3 April 2007 specifically to decide on the measure of restraint in his respect. The Court notes, that the preliminary hearing was scheduled for a day before the expiration of the detention term on 4 April 2007, covered by the detention order of 16 March 2007 and was meant to be exclusively devoted to the determination of the detention issue. While making reference to the current status of the measure of restraint in his decision of 26 March 2007 the judge did no more than noted the current status of the applicant’s restraint measure. He was not required, and as follows, he did not take any formal decision on the need to maintain or not the measure of restraint since that period had been already covered up to 4 April 2007 by the detention order on 16 March 2007, following a hearing which was not complained of by the applicant. When ordering the preliminary hearing the judge of the Regional Court therefore confined himself to verifying the grounds for holding it, in accordance with Article 228 of the Code of Criminal Procedure, without making any rulings apart from scheduling the date of the hearing. Therefore, the order of 26 March 2007 was of a technical organisational nature, and could not be regarded as a decision under which the applicant was deprived of his liberty Accordingly the fact that it was issued without either of the parties being present, as well as the alleged delay in the appeal review thereof, does not give rise to any issues under Article 5 § 4 of the Convention. The Court therefore finds that there was no violation of that Convention provision on that account.
Article IV.	II.  REMAINING COMPLAINTS
32.  Finally, the applicant made other complaints under Article 6 of the Convention.
33.  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 (see Mitkus v. Latvia, no. 7259/03, § 96, 2 October 2012; Mayzit v. Russia, no. 63378/00, §§ 68-71, 20 January 2005; and see Kashlan v. Russia (dec.), no. 60189/15, 19 April 2016).
34.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints under Article 5 § 4 admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 5 § 4 of the Convention;
Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President