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FIFTH
SECTION
CASE OF PSHEVECHERSKIY v. RUSSIA
(Application
no. 28957/02)
JUDGMENT
STRASBOURG
24 May
2007
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 Pshevecherskiy v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R.
Maruste,
Mr A. Kovler,
Mr J. Borrego
Borrego,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 2 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28957/02) 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 Avgustovich
Pshevecherskiy (“the applicant”), on 3 August 2001.
- The
applicant was represented by Mr Y. Leonov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
- On
8 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Moscow.
A. Applicant's arrest and detention during the
investigation
1. Arrest and detention order of 26 May 1999
- On
24 May 1999 the applicant was arrested on suspicion of child
trafficking and the organisation of a criminal enterprise. Two days
later a deputy prosecutor in Moscow authorised the applicant's
placement in custody on the grounds that he was charged with serious
criminal offences and was liable to pervert the course of justice.
The extension order indicated that the applicant had been remanded on
suspicion of having assisted several pregnant Russian women to obtain
visas and to travel to the United States where they had given birth
and put their babies up for adoption in exchange for 100 US dollars
(USD). The applicant had allegedly received between USD 10,000 and
USD 15,000 for each child.
- In
June 1999 the applicant's lawyer appealed to the Tverskoy District
Court of Moscow against the detention order of 26 May 1999.
- On
15 July 1999 the District Court dismissed the appeal, having
regard to the gravity of the charges against the applicant and the
risk of his absconding or obstructing the examination of the case if
released. It noted that an appeal lay to the Moscow City Court.
Neither the applicant nor his lawyer lodged an appeal.
- According
to the applicant, the investigation authorities searched his flat and
offices a number of times and seized his personal belongings,
including a computer and documents.
2. Extension order of 20 July 1999 (period to 23
November 1999)
- On
20 July 1999 the Moscow City Prosecutor extended the applicant's
detention until 23 November 1999, noting the gravity of the charges
against the applicant and the fact that he did not have a permanent
place of residence or work.
- On
17 September 1999 the Tverskoy District Court dismissed the appeal by
the applicant's lawyer against that order. It held that the
investigators had grounds to extend the applicant's detention, having
regard to the following considerations: the applicant's character, in
particular, the fact that he did not have a fixed place of residence
or work and had no previous convictions; the gravity of the charges;
the sentence he was facing and the (unspecified) circumstances of the
case. The applicant did not appeal.
3. Extension order of 8 September 1999 (period to 24
November 1999)
- On
8 September 1999 a deputy prosecutor general of the Russian
Federation authorised a further extension of the applicant's
detention until 24 November 1999 on the ground that it was
necessary to take certain investigative measures and that the gravity
of the charges and the applicant's character warranted the extension.
- The
applicant's appeal against the detention order of 8 September
1999 was dismissed on 1 November 1999 by the Tverskoy District Court,
which held that the competent prosecutor had authorised the extension
in compliance with the requirements of the Code of Criminal
Procedure. It took into account the applicant's character, the
gravity of the charges against him, “the particular
circumstances of the criminal offence” and the need to take
additional investigative measures and procedural steps. The decision
of 8 September 1999 was not appealed against and became final.
4. Detention orders of 16 November 1999, 14 February,
16 May and 22 August 2000 (period to 24 November 2000)
- On
16 November 1999 and 14 February 2000 a deputy prosecutor general
extended the applicant's detention until 24 February and 24 May 2000
respectively. The reasons for both extensions were similar: the
seriousness of the offences, the need to take additional
investigative measures and the applicant's character.
- On
16 May and 22 August 2000 the acting Prosecutor General of the
Russian Federation authorised extensions of the applicant's detention
until 24 August and 24 November 2000 respectively. He gave the same
reasons for the extensions as those that had been given in the
previous orders. At the same time, while noting that it was necessary
to take certain procedural steps, he indicated that the extensions
were also necessary to allow the applicant to study the case file,
which comprised thirty volumes.
- The
applicant did not appeal against any of the above-mentioned orders.
5. Detention order of 20 November 2000 (period to 24
May 2001)
- In
November 2000 the Moscow City Prosecutor asked the Moscow City Court
to extend the period of detention for an additional six months
because the applicant needed additional time to read the case file.
The applicant objected to the extension, claiming that he had waived
his right to study the case file and that he should be released
because the maximum eighteen-month period of his detention had
expired.
- On
23 November 2000 the Moscow City Court accepted the prosecutor's
request and granted the extension until 24 May 2001. The relevant
part of its decision which also concerned a co-defendant reads as
follows:
“The defendants [need to] study the materials of
the criminal case file which comprises fifty-two volumes. It will be
impossible for them to finish reading the case file before the
expiration of the maximum authorised period of detention.
[The court] does not find any ground for a change in the
preventive measure to which the defendants are subject. The criminal
offences with which they stand charged are included in the category
of serious and particularly serious offences. In view of the
circumstances of the case, taking into account the information about
the co-defendants' character and the materials in the case file, [I]
consider that, if released, the defendants ... will be liable to
resume their criminal activities, to pervert the course of justice
and to abscond or evade justice.
Having examined the arguments of the defendants and
their lawyers, who insisted that there was no basis for extending Mr
Pshevecherskiy's detention... [I] find their arguments
unsubstantiated.
[The court] cannot accept that the refusal of the
defendant, Mr P., and his lawyer to study the materials in the
criminal case file complies with the requirements of Article 201
of the RSFSR Code of Criminal Procedure, because the action under
Article 201 of the RSFSR Code of Criminal Procedure is an
investigative measure which has to be taken by an official authorised
by law and recorded in a register.
The record presented at the hearing shows that after the
case file was given to Mr P. for studying he, in the presence of his
lawyer Mr Po., ... refused to study it because his second lawyer, Ms
L., was not present; [the court] cannot conclude that this action
constituted a general waiver by the defendant of his right to study
the case file.
The court reaches the same conclusion with respect to Mr
Pshevecherskiy's refusal to study the case file on 16 November 2000
when his rights as an accused before the termination of the pre-trial
investigation were explained to him.
Article 201 of the RSFSR Code on Criminal Procedure lays
down that an investigator must provide an accused with the entire
case file. The record of 22 November 2000 indicates that when
the case file was given to the co-defendant, Mr Pshevecherskiy did
not refuse to study it, but refused to participate in that
investigative phase in the absence of his lawyer.
The present circumstances allow of the conclusion that
the defendants did not comply with the procedure for stating their
refusal to study the case file. This conclusion is supported by the
fact that at the present hearing the defendants expressed their wish
to study the evidence in the case file, in particular, the expert
opinions, which make up 14 volumes of the case file.”
- The
applicant and his lawyer appealed. In their grounds of appeal they
argued that the applicant should be released because the maximum
eighteen-month period for which his detention during the
investigation was permitted had expired.
- On 6 February 2001 the Supreme Court of the Russian
Federation upheld the detention order of 23 November 2000. The
relevant part of the Supreme Court's decision reads as follows:
“The submitted materials show that Mr P. and Mr
Pshevecherskiy were arrested on 24 May 1999 in compliance with
Article 122 of the RSFSR Code of Criminal Procedure, and on 26 May
1999 their placement in custody was authorised. Subsequently, the
acting Prosecutor General of the Russian Federation lawfully extended
the detention of Mr P. and Mr Pshevecherskiy for 18 months, that is
until 24 November 2000. On 16 November 2000 the defendants were
informed that the pre-trial investigation had ended and the
requirements of Article 201 of the RSFSR Code of Criminal Procedure
had to be fulfilled.
By virtue of Article 97 of the RSFSR Code of Criminal
Procedure, when a defendant and his lawyer are unable to complete the
examination of the materials in the case file before the expiration
of the maximum authorised period of detention, the Prosecutor General
of the Russian Federation, a prosecutor of a constituent entity of
the Russian Federation ... is entitled to ask a judge, no later than
five days before the expiration of the period, ... to extend it.
The Court finds that in asking the city court to extend
the period of detention of the defendants, Mr P. and Mr
Pshevecherskiy, to 24 months – until 24 May 2001 – the
prosecutor acted within his powers and in compliance with the
requirements of the above mentioned law on criminal procedure...
As the case file shows, on 22 November 2000 Mr
Pshevecherskiy ... was given the materials in the case file for
examination, and ... refused to participate in that investigative act
without his lawyer.
The judge lawfully indicated in his decision [of 23
November 2000] that the refusal of the defendants, Mr P. and Mr
Pshevecherskiy, to study the materials in the case file in the
absence of their counsel did not mean that that they did not wish to
study the case file in the presence of their counsel either.
As the record of the court hearing indicates, the
co-defendants, Mr P. and Mr Pshevecherskiy, wished to study the
expert opinions which made up some 14 to 16 volumes of the case file.
In these circumstances the Court cannot agree that ...
the defendants Mr P. and Mr Pshevecherskiy refused to read the
case file.
Having regard to the substantial size of the case file,
which comprises 52 binders, and to the fact that the defendants and
their lawyer will not be able to complete their examination of it
before the expiration of the maximum period of detention..., the
extension of their detention is lawful.
The city court correctly concluded that there were no
grounds for changing the measure of restraint to which the
defendants, Mr Parshutkin and Mr Pshevecherskiy, are subject. As it
is rightly stated in the decision, they have been charged with
particularly serious criminal offences and are liable to abscond,
evade justice or obstruct the examination of the case.”
B. Detention during the judicial proceedings
- On
11 May 2001 the applicant finished reading the file and on 24 May
2001 the case was committed for trial in the Moscow City Court. The
applicant remained in detention. It appears that his detention was
extended at regular intervals. However, he did not challenge any of
the detention orders in the court.
- On
14 December 2001 the Moscow City Court remitted the case to the
Moscow Prosecutor's Office for further investigation.
- On
4 April 2002 the applicant was released on a written undertaking not
to leave the city.
- On
30 December 2003 a senior investigator of the Tsentralniy District
Prosecutor's Office of Moscow discontinued the criminal proceedings
against the applicant because his conduct could not be characterised
as a criminal offence. The investigator also released the applicant
from his written undertaking and explained his right to
rehabilitation. Although he possessed a right of appeal to a
prosecutor or court, the applicant did not appeal.
II. RELEVANT DOMESTIC LAW
A. Preventive measures
- The
Code of Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (“the old Code”) of 27 October 1960 (effective
until 30 June 2002) listed as “preventive measures”,
inter alia, an undertaking not to leave a specified place and
placement in custody (Article 89).
B. Grounds for ordering detention on remand
- A
decision to order detention could only be taken by a prosecutor or a
court (Articles 11, 89 and 96). In making this decision the relevant
authority had to consider whether there were “sufficient
grounds to believe” that the accused would abscond during the
investigation or trial or obstruct the establishment of the truth or
re-offend (Article 89), and to take into account the gravity of the
charge, information on the character of the accused, his or her
profession, age, state of health, family status and other
circumstances (Article 91).
- Until
14 March 2001, detention on remand was authorised if the accused was
charged with a criminal offence carrying a sentence of at least one
year's imprisonment or if there were “exceptional
circumstances” in the case (Article 96). On 14 March 2001 the
Code was amended to provide for placement in custody if the charge
carried a sentence of at least two years' imprisonment, if the
defendant had previously defaulted or had no permanent residence in
Russia or if his identity could not be ascertained. The amendments of
14 March 2001 also repealed the provision that permitted the
defendant's placement in custody on the sole ground of gravity of the
criminal offence of which he was accused.
- A
prosecutor's order or court decision ordering detention had to be
reasoned and justified (Article 92). The accused had to be informed
of the detention order and to have the procedure for lodging an
appeal explained to him or her (Article 92).
C. Time-limits for detention on remand
Types of detention on remand
- The
Code distinguished between two types of detention on remand: the
first being detention “during the investigation”, that is
to say when an authorised agency – the police or a prosecutor's
office – undertook investigative measures, and the second
detention “before the court” (or “during the trial
proceedings”), when judicial proceedings were pending. Although
there was no difference in practice between them (the detainee was
normally held in the same detention facility), the calculation of the
time-limits was different.
Time-limits for detention “during the investigation”
- After arrest the person was placed in custody “during
the investigation”. The maximum permitted period of detention
“during the investigation” was two months, but it could
be extended up to eighteen months in “exceptional
circumstances”. Extensions were authorised by prosecutors of
ascending hierarchical levels, up to the Prosecutor General of the
Russian Federation. No extensions beyond eighteen months were
permitted (Article 97).
- The time-limit for detention “during the
investigation” was calculated until the day the investigation
was considered to have been completed and the defendant was given
access to the case file (Articles 97, 199, 200 and 201). If the
defendant needed additional time to study the case-file, a judge
acting on a request by a prosecutor could grant an extension of the
defendant's detention on remand until such time as the defendant had
completed his or her examination of the file, but for no longer than
six months.
Time-limits for detention “before the court”
- Once
the investigation was considered to be complete and the defendant had
received the bill of indictment and finished reading the case file,
the file was transferred to a trial court. Thereafter the defendant's
detention was “before the court” (or “during the
trial proceedings”). Until 14 March 2001 the Code set no
time-limit for detention “during the trial proceedings”.
D. Proceedings to examine the lawfulness of detention
During detention “during the investigation”
- The
detainee or his or her counsel or representative were entitled to
challenge the detention order and any subsequent extension to it in
court (Article 2201).
The judge was required to review the lawfulness and justification for
the detention or extension order by no later than three days after
receipt of the relevant materials. The review was conducted in
camera in the presence of a prosecutor and the detainee's counsel
or representative. The detainee was summoned and a review in his
absence was only permissible in exceptional circumstances if the
detainee waived his right to be present on his own initiative. The
judge could either dismiss the challenge or revoke the detention on
remand and order the detainee's release. The judge's decision had to
be reasoned (Article 2202).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his detention from 24 November 2000 to 21
May 2001 had been unlawful. The Court considers that the present
complaint falls to be examined under Article 5 § 1, which in the
relevant part reads 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...”
- The
Government argued that owing to the expiration of the maximum
(eighteen-month) period of permitted detention on 24 November 2000
and the fact that the applicant needed additional time to study the
voluminous case file, the domestic courts had extended his detention
for six months in compliance with the RSFSR Code of Criminal
Procedure, in particular Articles 97 and 201 thereof. On 23 November
2000 the Moscow City Court accepted the request of the Moscow City
Prosecutor and extended the detention, holding that the gravity of
the charges, the applicant's character (in particular, the fact that
he had no permanent place of residence or work) and the circumstances
of the case warranted the extension for a further six months and
would allow the applicant to complete his examination of the
materials in the case file. The Government further pointed out that
the applicant had not waived his right to read the file, but had
merely insisted on reading it with his lawyer. Furthermore, he had
expressly asked the Moscow City Court to allow him to study the
volumes of the case file which contained the expert opinions.
- The
applicant averred that he had refused to study the case file whether
or not his lawyer was present. The domestic authorities had been well
aware of this but had distorted the facts and extended his detention
despite his express refusal to read the file.
- 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 was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion (see Khudoyorov v. Russia, no. 6847/02, §§
124, ECHR 2005).
- The
Court notes that on 23 November 2000 the Moscow City Court, upon a
petition from the Moscow City Prosecutor, extended the applicant's
detention for six months, citing the needs of the applicant to study
the case file as the main reason. On 6 February 2001 the Supreme
Court of the Russian Federation upheld that order.
- The
Court observes that the rules on detention at the time permitted up
to eighteen months' detention “during the investigation”,
plus up to six months when authorised by a judicial decision if the
defendants required more time to study the file (see paragraphs 30
and 31 above).
- The
Court notes that in the present case the eighteen-month period
expired on 24 November 2000. On the day before the deadline expired
the Moscow City Court authorised six additional months in custody
until 24 May 2001 under its power to grant a further extension
to allow the applicant to study the case file.
- The
Court reiterates that a court's decision to maintain a custodial
measure does not breach Article 5 § 1 provided that the court
“acted within its jurisdiction... [and] had power to make an
appropriate order” (see Korchuganova v. Russia, no.
75039/01, § 62, 8 June 2006, with further references).
- It
has not been alleged that in making the order for a further extension
the City Court acted in excess of its jurisdiction. Indeed, as a
matter of domestic law it did have the power to grant a further
extension, not exceeding six months (see paragraph 31 above).
- The
City Court found that the applicant should remain in custody because
he had been charged with serious criminal offences, did not have a
permanent place of residence or work, and was liable to abscond and
pervert the course of justice. It examined the applicant's argument
that he did not wish to continue reading the file and noted his
request for access to the volumes containing the expert reports. It
found that the applicant had not waived his right to study the file
and needed additional time to do so.
- In
this respect, the Court finds that the applicant's detention on the
basis of the order of 23 November 2000 cannot be said to have been
arbitrary as the City Court gave certain grounds to justify his
continued detention on remand. The sufficiency and relevance of these
grounds will be discussed below from the standpoint of Article 5 §
3 of the Convention (see Khudoyorov, cited above, § 152).
- It
has not been established that, in issuing the detention order of
23 November 2000, the City Court acted in bad faith or neglected
to apply the relevant legislation correctly. There is nothing to
suggest that its decision was invalid or unlawful under domestic law.
- In
these circumstances, the Court finds that the complaint about the
alleged unlawfulness of the applicant's detention from 24 November
2000 to 24 May 2001 is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention was
unreasonable, in breach of 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
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial.”
A. Admissibility
1. Submissions by the parties
- The
Government claimed that the applicant had failed to exhaust domestic
remedies as the only appeal he had lodged was against the detention
order of 23 November 2000.
- The
applicant submitted that at the material time he had unsuccessfully
applied to all the domestic authorities for release.
2. The Court's assessment
- The
Court reiterates that the purpose of the rule requiring domestic
remedies to be exhausted is to afford the Contracting States the
opportunity of preventing or putting right the alleged violations
before those allegations are submitted to the Court (see, among many
other authorities, Selmouni v. France [GC], no. 25803/94,
§ 74, ECHR 1999-V). In the context of an alleged violation
of Article 5 § 3 of the Convention, this rule requires that the
applicant give the domestic authorities an opportunity to consider
whether his right to trial within a reasonable time has been
respected and whether there exist relevant and sufficient grounds
continuing to justify the deprivation of liberty.
- Following
his arrest on 24 May 1999 the applicant remained in custody until his
release on 4 April 2002. It is not disputed that he did not lodge any
appeals against the District Court's decisions of 15 July,
17 September and 1 November 1999 and the prosecutors' extension
orders of 16 November 1999, 14 February, 16 May and 22 August 2000.
He did, however, challenge the later decision of the Moscow City
Court before the Supreme Court of the Russian Federation, which on 6
February 2001 held that the applicant's arrest and the entire period
of his detention were lawful. In these circumstances, the
Government's objection of non-exhaustion of domestic remedies must be
dismissed in so far as it concerned the applicant's failure to appeal
against the detention orders issued before 23 November 2000 (see
Shcheglyuk v. Russia, no. 7649/02, § 36,
14 December 2006).
- The
Court further notes that 6 February 2001 was the most recent date on
which the appeal court examined the issue concerning the applicant's
continued detention. It reiterates that on that date the Supreme
Court upheld the order of 23 November 2000 extending the applicant's
detention until 24 May 2001. The applicant did not challenge any of
the orders extending his detention after 24 May 2001. The Government
argued that by failing to file appeals, the applicant had denied the
domestic authorities an opportunity to consider whether these further
extensions were compatible with his Convention right to trial within
a reasonable time or release pending trial. They insisted that the
Court should reject the applicant's complaints in respect of that
period of his pre-trial detention for the failure to exhaust
available domestic remedies.
- In this respect the Court reiterates that the question
of exhaustion of domestic remedies in respect of the extension orders
issued after 24 May 2001 will only arise if the examination of the
reasons given by the domestic courts in their decisions extending the
applicant's detention until 24 May 2001 will lead the Court to the
conclusion that by that date the detention had not exceeded a
reasonable time. Indeed, the Court has already held that when
detention on remand is found to have exceeded a reasonable time on
the most recent date when an appeal court examined the detention
matter, the detention after that date will also be found, except in
extraordinary circumstances, to have necessarily kept such character
throughout the time for which it was continued (see Stögmüller
v. Austria, judgment of 10 November 1969, Series A
no. 9, § 12).
- The Court thus considers that the issue of exhaustion
of domestic remedies in respect of the applicant's detention after 24
May 2001 is closely linked to the merits of the complaint that his
detention before 24 May 2001 had already exceeded a reasonable time
in violation of the requirements of Article 5 § 3 of the
Convention. The Court therefore finds it necessary to join the
Government's objection to the merits of the applicant's complaint in
respect of his detention on remand before 24 May 2001.
- The
Court further notes that the applicant's complaint under Article 5
§ 3 of the Convention is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and 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 length of the applicant's detention on
remand was not excessive. It did not exceed the maximum period of
detention established under Russian law. The Government further noted
that the extensions of the applicant's detention were necessary in
the circumstances of the case, in particular taking into account the
applicant's character (notably, the fact that he did not have a
permanent place of residence or work), the gravity of the charges
against him and the risk of his absconding or obstructing the
examination of the case, if released.
- The
applicant replied that the domestic courts had not provided any
evidence to show that he was genuinely liable to re-offend, abscond
or pervert the course of justice. The only reason for his continued
detention was the gravity of the charges against him. Furthermore,
the criminal proceedings against him were later discontinued because
there was no evidence that a criminal offence had been committed.
2. The Court's assessment
(a) General principles
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty.
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the true
facts mentioned by the applicant in his appeals that the Court is
called upon to decide whether or not there has been a violation of
Article 5 § 3 of the Convention (see Labita v.
Italy [GC], no. 26772/95, § 152, ECHR 2000 IV).
- The
arguments for and against release must not be “general and
abstract” (see Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides
for a presumption in respect of factors relevant to the grounds for
continued detention, the existence of the concrete facts outweighing
the rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, no. 33977/96,
§ 84 in fine, 26 July 2001).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(Labita, cited above, § 153).
(b) Application of the general principles
to the present case
- Having
regard to its finding in paragraphs 53 and 54 above, the Court will
firstly examine the period of two years of the applicant's detention
on remand, that is from the date of his arrest on 24 May 1999 to
24 May 2001.
- The
Court accepts that the applicant's detention may initially have been
warranted by a reasonable suspicion that he had organised a criminal
enterprise involved in child trafficking. In the decision of 26 May
1999 a deputy Moscow prosecutor cited the gravity of the charges, the
need to ensure the proper conduct of the investigation and to prevent
the applicant from perverting the course of justice as the grounds
for placing him in custody. At that stage of the proceedings those
reasons were sufficient to justify keeping the applicant in custody
(see Khudoyorov, cited above, § 176).
- However,
with the passage of time those grounds inevitably became less and
less relevant. Accordingly, the authorities were under an obligation
to analyse the applicant's personal situation in greater detail and
to give specific reasons for holding him in custody.
- The
Court reiterates that from 24 May 1999 to 24 May 2001 the applicant's
detention on remand was extended seven times. When extending the
applicant's detention or examining the lawfulness of, and
justification for, his continued detention the domestic authorities
consistently relied on the gravity of the charges as the main factor
and the risk of the applicant's absconding or perverting the course
of justice.
- As
regards the domestic authorities' reliance on the gravity of the
charges as being the decisive element, the Court has repeatedly held
that the gravity of the charges cannot by itself serve to justify
long periods of detention on remand (see Panchenko v. Russia,
no. 45100/98, § 102, 8 February 2005; Goral v.
Poland, no. 38654/97, § 68, 30 October 2003; Ilijkov,
cited above, § 81). This is particularly true in the
Russian legal system where the characterisation in law of the facts –
and thus the sentence faced by the applicant – is determined by
the prosecution without judicial review of the issue whether the
evidence that has been obtained supports a reasonable suspicion that
the applicant has committed the alleged offence (see Khudoyorov,
cited above, § 180). In this respect, the Court does not lose
sight of the fact that the criminal proceedings against the applicant
were eventually discontinued because his conduct did not constitute a
criminal offence.
- The
other grounds for the applicant's continued detention were the
domestic authorities' findings that the applicant was liable to
abscond or pervert the course of justice. The Court reiterates that
it is incumbent on the domestic authorities to establish the
existence of concrete facts relevant to the grounds for continued
detention. Shifting the burden of proof to the detained person in
such matters is tantamount to overturning the rule of Article 5 of
the Convention, a provision which makes detention an exceptional
departure from the right to liberty and one that is only permissible
in exhaustively enumerated and strictly defined cases (see Rokhlina
v. Russia, no. 54071/00, § 67, 7 April 2005). It
remains to be ascertained whether the domestic authorities
established and convincingly demonstrated the existence of concrete
facts in support of their conclusions.
- The
Court notes that the domestic authorities gauged the risk of the
applicant's absconding by reference to the fact that he had been
charged with serious criminal offences and so faced a heavy sentence.
In this respect the Court reiterates that, although the severity of
the sentence faced is a relevant element in the assessment of the
risk of absconding or re-offending, the need to continue the
deprivation of liberty cannot be assessed from a purely abstract
point of view. It must be examined with reference to a number of
other relevant factors which may either confirm the existence of a
danger of absconding and re-offending or make it appear so slight
that it cannot justify detention pending trial (see Letellier v.
France, judgment of 26 June 1991, Series A no. 207, § 431;
and Panchenko, cited above, § 106).
- In
the present case the domestic authorities did not cite any concrete
facts warranting the applicant's detention on that ground, save for a
brief reference to the applicant's “character”, as
typified by his lack of a permanent place of residence or work. In
this respect, the Court reiterates that the mere absence of a fixed
residence does not give rise to a danger of absconding. Nor can it be
concluded from a person's lack of employment that he is liable to
commit new offences (see Sulaoja v. Estonia, no. 55939/00,
§ 64, 15 February 2005). The Court further observes
that the authorities did not indicate any other circumstance to
suggest that, if released, the applicant would abscond or otherwise
upset the course of the trial. The Court finds that the existence of
such a risk was not established.
- The
Court further emphasises that when deciding whether a person should
be released or detained, the authorities have an obligation under
Article 5 § 3 to consider alternative measures to
ensure his or her appearance at the trial (see Sulaoja, cited
above, § 64, and Jabłoński v. Poland, no.
33492/96, § 83, 21 December 2000). During the entire period
under consideration the authorities did not consider the possibility
of ensuring the applicant's attendance by the use of other
“preventive measures” – such as a written
undertaking or bail – which are expressly provided for by
Russian law to secure the proper conduct of criminal proceedings.
Furthermore, the Court finds it particularly striking that the
applicant was kept in custody for six months, from 24 November 2000
to 24 May 2001, for the sole purpose of studying the case file.
However, at no point did either the City Court or Supreme Court,
which examined the issue of the lawfulness of the applicant's
detention during that period, consider having recourse to such
alternative measures or, at the very minimum, seek to explain in
their decisions why such alternatives would not have ensured that the
trial would follow its proper course.
- In
sum, the Court finds that the domestic authorities' decisions were
not based on an analysis of all the pertinent facts. They paid no
regard to the arguments in favour of the applicant's release pending
trial. It is also of particular concern to the Court that the Russian
authorities persistently used a stereotyped summary formula to
justify extending his detention: the prosecutors reproduced the same
formula in all their decisions.
- Having
regard to the above, the Court considers that by failing to address
concrete relevant facts or consider alternative “preventive
measures” and by relying essentially on the gravity of the
charges, the authorities prolonged the applicant's detention until 24
May 2001 on grounds which cannot be regarded as “sufficient”.
They thus failed to justify the applicant's continued detention and
by 24 May 2001 the length of his detention had already ceased to be
reasonable (see Rokhlina, cited above, § 69).
- Having
regard to the above finding and in the absence of any extraordinary
circumstances, the Court cannot conclude that after 24 May 2001
the character of the applicant's continued detention changed. It is
hence not necessary to examine whether the applicant exhausted
domestic remedies in respect of his complaint related to his
detention after 24 May 2001.
- The
Court, accordingly, finds a violation of Article 5 § 3 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
his observations lodged with the Court on 5 February 2006 the
applicant complained that the length of the criminal proceedings had
been excessive, that the trial court had not examined the merits of
the criminal case, that for almost three years he had been detained
in poor conditions, and that the investigation authorities had seized
his property and had not returned it to him.
- The
Court reiterates that, according to Article 35 of the Convention, the
Court may only deal with a matter within a period of six months from
the date on which the final decision was taken. The Court notes that
the applicant's complaints relate to the period when he was in
pre-trial detention and the criminal proceedings against him were
pending. The applicant's detention on remand ended with his release
on 4 April 2002 and the criminal proceedings terminated on
30 December 2003 with the decision of a senior investigator of
the Tsentralniy District Prosecutor's Office of Moscow. The applicant
raised these complaints before the Court in his observations lodged
on 5 February 2006, which was more than six months after the
criminal proceedings against him were discontinued.
- It
follows that the present complaints were introduced out of time and
must be rejected in accordance with Article 35 §§ 1 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 an unspecified amount representing capital losses
during the period when he was detained. He submitted that he had been
dismissed from his employment during the criminal proceedings and had
been forced to pay for his lawyers' services. He further claimed
2,500,000 US dollars in respect of non-pecuniary damage.
- The
Government contested the existence of a causal link between the
alleged violation and the pecuniary loss alleged by the applicant, as
the decision to prefer criminal charges against the applicant was not
the subject of the Court's review in the present case. They further
argued that the applicant had not exhausted the available domestic
remedies in respect of his claims under Article 41 of the Convention
as he could have lodged an action in tort in the competent domestic
court. In any event, a finding of a violation would constitute
sufficient just satisfaction.
- The
Court reiterates, firstly, that an applicant cannot be required to
exhaust domestic remedies to obtain compensation for his loss since
this would prolong the procedure before the Court in a manner
incompatible with the effective protection of human rights (see
Papamichalopoulos and Others v. Greece (Article 50), judgment
of 31 October 1995, Series A no. 330-B, § 40, and
Gridin v. Russia, no. 4171/04, § 20, 1 June 2006).
The Government objection as to the non-exhaustion of domestic
remedies is, therefore, dismissed.
- The
Court further notes that the decision to prefer criminal charges
against the applicant was not the subject of its review in the
present case. It shares the Government's view that there is no causal
link between the violations found and the pecuniary damage claimed
(see Nakhmanovich v. Russia, no. 55669/00, § 102, 2
March 2006). Furthermore, the applicant did not specify the amount of
compensation claimed in respect of pecuniary damage. Consequently the
Court finds no reason to award the applicant any sum under this head.
- As
to non-pecuniary damage, the Court observes that the applicant, who
was not convicted of any criminal offence, spent a long period in
custody without relevant and sufficient grounds. In these
circumstances, it considers that the applicant's suffering and
frustration cannot be compensated for by a mere finding of a
violation. Making its assessment on an equitable basis, it awards the
applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not seek reimbursement of costs and expenses and this
is not a matter which the Court is required to examine on its own
motion (see Motière v. France, no. 39615/98, § 26,
5 December 2000).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join to the merits the question of
exhaustion of domestic remedies in respect of the applicant's
complaint about the excessive length of his detention after 24 May
2001;
- Declares the complaint concerning an alleged
violation of the applicant's right to trial within a reasonable time
or release pending trail admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable at the date of the
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
