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FIRST
SECTION
CASE OF POPKOV v. RUSSIA
(Application
no. 32327/06)
JUDGMENT
STRASBOURG
15
May 2008
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 Popkov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 1 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32327/06) 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 Roman Andreyevich Popkov
(‘the applicant”), on 8 July 2006.
- The
applicant was represented before the Court by Mr D. Agranovskiy,
a lawyer practising in the Moscow Region. The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant alleged that his detention pending trial had been unlawful
and excessively long.
- On
14 February 2007 the Court decided to communicate the complaint about
the allegedly excessive length of detention 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 President made a decision on priority treatment of
the application (Rule 41 of the Rules of Court).
- 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 1978 and lives in Moscow.
A. Background information
- The
applicant was a member of a public association, the National
Bolshevik Party. On 15 November 2005 the Supreme Court of the Russian
Federation ordered its dissolution. On 19 January 2006 the Federal
Registration Service of the Ministry of Justice refused an
application for registration of a political party by the same name.
Party members challenged the refusal before the Taganskiy District
Court of Moscow.
- On
13 April 2006 fifteen party members, including the applicant, came to
the Taganskiy District Court for a hearing concerning the refusal to
register the National Bolshevik Party. The applicant alleged that
near the court building they had been attacked by a group of forty
people and had had to defend themselves. According to the Government,
the party members, including the applicant, had assaulted passers-by
with gas guns and rubber truncheons.
B. Criminal proceedings against the applicant
- According
to the Government, on 15 May 2006 the applicant was arrested in an
attic where he was hiding. He was armed with a gas gun and offered
resistance to the police. On the same day he was confronted with a
witness, who identified him as one of the perpetrators of the
assault.
- According
to the applicant, on 15 May 2006 he had attended an assembly of
members of the National Bolshevik Party which was held on the
premises of the Communist Party of the Russian Federation. At about
8 p.m. the police broke down the door and arrested the applicant
together with three other participants in the assembly. They did not
offer any resistance to the police. The applicant’s account of
the events was confirmed by affidavits by two members of the
Communist Party of the Russian Federation.
- On
16 May 2006 the applicant was charged with participation in mass
disorders, involving the use of gas guns, assault and battery, an
offence under Article 213 § 2 of the Criminal Code.
- On
17 May 2006 the Tverskoy District Court of Moscow remanded the
applicant in custody. It referred to the gravity of the charge, “his
active role in the imputed offence”, and the risk of absconding
and reoffending.
- In
their appeal submission the applicant and his counsel complained that
the District Court had disregarded such pertinent facts as the
absence of a criminal record, the applicant’s permanent
residence and employment and positive references. The conclusions
that the applicant might flee or reoffend were hypothetical and were
not supported by relevant facts.
- On
31 May 2006 the Moscow City Court upheld the decision on appeal,
finding that it had been lawful, sufficiently reasoned and justified.
- On an unspecified day the investigator applied to the
Tverskoy District Court for an extension of the applicant’s
detention until 16 September 2006. He argued that there was a
need for a further investigation and that it was “not
opportune” to release the applicant.
- On 14 July 2006 the Tverskoy District Court extended
the applicant’s detention until 16 September 2006. The
decision read as follows:
“The court considers that there are no reasons to
refuse the investigator’s request [for an extension]. It
follows from the case file that [the applicant] is charged with a
criminal offence punishable by more than two years’
imprisonment and classified as serious under [criminal] law, he has
previously been criminally prosecuted and the criminal proceedings
against him were discontinued on non-exonerating grounds. The court
takes into account the arguments of the defendant and his counsel,
however at the court hearing they did not advance convincing
arguments in support of their request for release. Taking into
account the extent of the investigative actions to be carried out,
the period for extension proposed by the investigator ... is
reasonable. The grounds for [the applicant’s] detention have
not ceased to exist. In view of the above, the court ... considers
that there are sufficient reasons to believe that if released the
defendant may abscond or impede the investigation in some other way.
The court ... does not see any reason to release [the applicant] or
apply a more lenient preventive measure.”
- The
applicant appealed. He repeated his arguments advanced in the
previous grounds of appeal and complained that his detention was
incompatible with the requirements of Article 5 § 3 of the
Convention.
- On
20 September 2006 the Moscow City Court upheld the extension order on
appeal.
- On
15 September 2006 the Tverskoy District Court extended the
applicant’s detention until 16 November 2006, referring to the
gravity of the charge, the need for a further investigation, and the
risk of the applicant’s absconding or interfering with the
establishment of the truth. On 25 October 2006 the Moscow City Court
upheld the extension order on appeal.
- On
15 November 2006 the Tverskoy District Court extended the applicant’s
detention until 16 January 2007. It found that the applicant had been
charged with serious criminal offences and had no residence
registration or employment in Moscow or in the Moscow Region, which
gave reasons to believe that he might abscond or impede the
investigation.
- The
applicant appealed. He denied involvement in any criminal activity
and alleged that the criminal proceedings against him were
politically motivated and that he was being persecuted for his
membership of the National Bolshevik Party. He asked the court to
release him on bail. He insisted that he had a permanent place of
residence and employment in Moscow and that he had no intention of
impeding the investigation. A member of Parliament offered his
personal guarantee that the applicant would not abscond. On
20 December 2006 the Moscow City Court upheld the extension
order on appeal, finding that it had been lawful and justified.
- On
15 January 2007 the Tverskoy District Court extended the applicant’s
detention until 16 March 2007. Counsel argued before the court that
the applicant had been arrested a month after the fight and had had
plenty of opportunity to abscond during that month if he wished. The
fact that he had not fled from justice proved that he had no such
intention. He moreover submitted that a member of Parliament had
offered his personal guarantee that the applicant would not abscond
and that the applicant’s relatives were ready to post bail for
him. The court found as follows:
“The court takes into account the arguments of the
defence..., however, given the social dangerousness of the [imputed]
criminal offence which is classified as serious and is punishable by
more than two years’ imprisonment, the character of [the
applicant] who has been already prosecuted for a similar offence and
does not live at his registered place of residence, and the extent of
the investigative actions to be carried out and the fact that the
case ... involves six defendants and is complex, the court agrees
with the prosecutor’s arguments and considers that it is
necessary to ... extend the applicant’s detention for two
months. The court does not see any reason to apply a more lenient
preventive measure ... because the circumstances described above,
namely the gravity of the charge and [the applicant’s]
character give reasons to believe that he may abscond or impede the
investigation in some other way, if released.”
- On
14 February 2007 the Moscow City Court upheld the extension order on
appeal.
- On
an unspecified date the investigation was completed and six
defendants, including the applicant, were committed for trial.
- On 12 March 2007 the Taganskiy District Court of
Moscow scheduled a preliminary hearing for 20 March 2007 and held
that all the defendants should remain in custody. It found that the
defendants had been charged with a serious offence committed by an
organised group some members of which had not yet been identified,
referred to the defendants’ characters and concluded that they
might abscond or intimidate the victims and witnesses.
- On
23 April 2007 the Moscow City Court upheld the extension order on
appeal, finding that it had been lawful, well-reasoned and justified.
- On
27 March 2007 the Taganskiy District Court held a preliminary
hearing. It refused the defendants’ requests for release,
citing the gravity of the charges against them and the risk of their
absconding, reoffending or obstructing justice. In respect of the
applicant’s “character” the court noted that he had
a registered place of residence in Bryansk and had already been
prosecuted for a similar offence committed in 2002.
- On
30 May 2007 the Moscow City Court upheld the decision on appeal.
- On
24 May 2007 the Taganskiy District Court remitted the case for a
further investigation.
- On
29 June 2007 the Tverskoy District Court extended the applicant’s
detention until 6 August 2007 for the same reasons as before. It also
held that the case involved several defendants and was complex. The
complexity of the case justified the length of the applicant’s
detention.
- In
his appeal submission the applicant repeated his arguments that he
had a permanent place of residence and employment in Moscow and
positive references. He reiterated that a member of Parliament had
vouched for his attendance and that his relatives were ready to post
bail for him. On 15 August 2007 the Moscow City Court upheld the
extension order on appeal.
- On
2 August 2007 the defendants were again committed for trial. The
trial started on 8 August 2007.
- On
11 September 2007 the applicant lodged an application for release
with the Taganskiy District Court. Referring to Article 5 § 3 of
the Convention he claimed that his detention had exceeded “a
reasonable time”. He asked to be released on bail.
- On 12 September 2007 the Taganskiy District Court
rejected his application. It noted that the applicant’s
arguments had already been examined and rejected many times when
extension orders had been issued. It found that the grounds for the
applicant’s detention mentioned in the extension orders were
still pertinent and it was still necessary to hold him in custody.
The applicant had been charged with a serious criminal offence
committed by an organised group, some members of which had not yet
been identified. Given the gravity of the charges against him, he
might abscond, reoffend or interfere with the establishment of the
truth if released.
- The
applicant appealed. The parties did not inform the Court whether the
grounds of appeal had been examined. It appears that the criminal
proceedings against the applicant are still pending.
II. RELEVANT DOMESTIC LAW
- Since
1 July 2002 criminal law matters have been governed by the Code of
Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18
December 2001).
- “Preventive measures” or “measures
of restraint” (меры пресечения)
include an undertaking not to leave a town or region, personal
surety, bail and detention (Article 98). If necessary, the suspect or
accused may be asked to give an undertaking to appear (обязательство
о явке) (Article 112).
- When deciding on a preventive measure, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that the accused would abscond during the
investigation or trial, reoffend or obstruct the establishment of the
truth (Article 97). It must also take into account the gravity of the
charge, information on the accused’s character, his or her
profession, age, state of health, family status and other
circumstances (Article 99).
- Detention may be ordered by a court if the charge
carries a sentence of at least two years’ imprisonment,
provided that a less restrictive preventive measure cannot be applied
(Article 108 § 1).
- After arrest the suspect is placed in custody “during
the investigation”. The period of detention during the
investigation may be extended beyond six months only if the detainee
is charged with a serious or particularly serious criminal offence.
No extension beyond eighteen months is possible (Article 109 §§
1-3). The period of detention “during the investigation”
is calculated to the day when the prosecutor sends the case to the
trial court (Article 109 § 9).
- From
the date the prosecutor forwards the case to the trial court, the
defendant’s detention is “before the court” (or
“during the trial”). The period of detention “during
the trial” is calculated to the date the judgment is given. It
may not normally exceed six months, but if the case concerns serious
or particularly serious criminal offences, the trial court may
approve one or more extensions of no longer than three months each
(Article 255 §§ 2 and 3).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicant complained under Article 5 § 1 (c)
of the Convention that there had been no grounds to detain him and
that the domestic courts had not had due regard to the defence’s
arguments. Under Article 5 § 3, he complained that his right to
trial within a reasonable time had been infringed and alleged that
detention orders had not been founded on sufficient reasons. The
relevant parts of Article 5 read 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;
...
3. 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. Release
may be conditioned by guarantees to appear for trial ...”
A. Admissibility
- As
regards the applicant’s complaint that his detention was
unlawful, the Court notes that on 17 May 2006 the Tverskoy District
Court of Moscow remanded the applicant in custody because of the
gravity of the charges against him. The applicant’s detention
was subsequently extended on several occasions by the domestic
courts.
- The
domestic courts acted within their powers in making those decisions
and there is nothing to suggest that they were invalid or unlawful
under domestic law. The question whether the reasons for the
decisions were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 § 3
(compare Khudoyorov v. Russia, no. 6847/02, §§
152 and 153, ECHR 2005 ... (extracts)).
- The
Court finds that the applicant’s detention was compatible with
the requirements of Article 5 § 1 of the Convention. It follows
that this complaint must be rejected as manifestly ill-founded
pursuant to Article 35 §§ 3 and 4 of the Convention.
- As
regards the applicant’s complaint that his right to trial
within a reasonable time or to release pending trial had been
infringed, the Court finds that it is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
Government submitted that on 19 April 2007 the National Bolshevik
Party had been recognised as an extremist organisation by a Russian
court and had been banned. Since the party no longer existed, the
applicant could not continue to be a member of it. They further
argued that the decisions to remand the applicant in custody had been
lawful and justified. He had been charged with a serious offence, had
absconded from the crime scene and had been arrested a month later in
the attic where he had been hiding. He had been armed with a gas gun
and had offered resistance to the police. The Government disputed the
applicant’s allegation that he had been arrested at the
assembly of the National Bolshevik Party. In their view, after the
party had been dissolved it could no longer hold assemblies.
Moreover, at the time of the arrest no criminal proceedings had been
pending against the applicant, he had not been formally recognised as
a suspect and therefore had not enjoyed the rights that suspects
enjoyed under domestic law. Once the applicant had been brought to
the police station a witness had identified him as one of the
perpetrators of the assault. That had raised a reasonable suspicion
that the applicant had committed a criminal offence, so he had been
remanded in custody.
- The
Government further repeated the reasons given by the domestic courts.
The grounds for detention were described in Article 97 of the Code of
Criminal Procedure (see paragraph 38 above) and the courts had
referred to all of them in their decisions. It was not the Court’s
role to assess itself the facts which had led national courts to
adopt one decision rather than another. If it were otherwise, the
Court would be acting as a court of third or fourth instance, which
would be to disregard the limits imposed on its action (see Kemmache
v. France (no. 3), judgment of 24 November 1994, Series A
no. 296 C, § 44). The courts had relied on
specific facts in their detention orders: they had indicated the
imputed criminal offence and had listed the investigator’s
arguments advanced in his requests for an extension. The applicant’s
potential to abscond had been gauged by reference to the facts that
he had no permanent place of residence in Moscow, had gone into
hiding after the fight and had only been found a month later, on
non-residential premises. Moreover, the applicant did not live at his
registered address in Bryansk. He had left for Moscow where he had
got married and rented a flat. When questioned by the authorities,
his mother had stated that she did not know his address in Moscow.
Therefore, the courts’ finding that he had no permanent place
of residence had been correct. The potential for reoffending had been
gauged by reference to the fact that the applicant had been
prosecuted previously for disorderly behaviour and the criminal
proceedings had been discontinued because the applicant and the
victim had reached a reconciliation, that is on non-exonerating
grounds. The Government considered the applicant’s pre-trial
detention had been founded on “relevant and sufficient”
reasons.
- Finally,
referring to the case of Contrada v. Italy (judgment of
24 August 1998, Reports of Judgments and Decisions
1998 V, § 67), the Government submitted that the case
had to be investigated with “special thoroughness”, given
that the defendants were members of an organisation with a rigid
hierarchical structure and very strict rules.
- The
applicant considered that the domestic courts had not advanced
“relevant and sufficient” reasons to hold him in custody
for more than a year. He denied that he had been in hiding. He had
not fled from justice during the month that had passed between the
fight and his arrest, although he had had plenty of opportunity to do
so if he wished. He considered himself the victim rather than the
perpetrator of the attack and was interested in cooperating with the
investigation to assist them in establishing the truth. As to the
circumstances of his arrest, he had been arrested during a lawful
assembly of the members of the National Bolshevik Party which had
been held on the premises of the Communist Party of the Russian
Federation, with the owner’s consent. The police had broken
down the door and used force to arrest him, despite the fact he had
not offered any resistance. He had a gas gun on him for defence
purposes only, because he had been attacked many times in the past.
- The
applicant further argued that he had no criminal record, had
permanent employment and a permanent place of residence in Moscow. He
had offered to post bail and had provided the courts with the
personal surety of a member of Parliament. However, the domestic
authorities had continued to extend his detention, without
demonstrating the existence of specific facts in support of their
conclusion that he might abscond, interfere with the investigation or
reoffend. He denied being a member of any organisation with a rigid
hierarchical structure or strict rules and submitted that the
domestic courts had never referred to his alleged membership of such
an organisation in their decisions.
2. The Court’s assessment
(a) General principles
- The
Court reiterates that the persistence of reasonable suspicion that
the person arrested has committed an offence is a condition sine
qua non for the lawfulness of the continued detention. However
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 (see Labita v. Italy [GC], no. 26772/95,
§§ 152 and 153, ECHR 2000-IV).
- The presumption is in favour of release. As the Court
has consistently held, the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continued detention ceases to be reasonable. A person charged
with an offence must always be released pending trial unless the
State can show that there are “relevant and sufficient”
reasons to justify the continued detention (see, among other
authorities, Castravet v. Moldova, no. 23393/05, §§ 30
and 32, 13 March 2007; McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...; Jabłoński v.
Poland, no. 33492/96, § 83, 21 December 2000; and
Neumeister v. Austria, judgment of 27 June 1968, Series A
no. 8, § 4). Article 5 § 3 of the Convention
cannot be seen as unconditionally authorising detention provided that
it lasts no longer than a certain period. Justification for any
period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria,
no. 38822/97, § 66, ECHR 2003 I (extracts)).
- It
is incumbent on the domestic authorities to establish the existence
of specific 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, and
Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July
2001). The national judicial authorities 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 must set them out in their decisions
dismissing the applications for release. It is not the Court’s
task to establish such facts and take the place of the national
authorities who ruled on the applicant’s detention. It is
essentially on the basis of the reasons given in the domestic courts’
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
Korchuganova v. Russia, no. 75039/01, § 72,
8 June 2006; Ilijkov, cited above, § 86; and Labita,
cited above, § 152).
(b) Application to the present case
- The
applicant was arrested on 15 May 2006. He has been held in custody
ever since. The period to be taken into consideration has lasted
slightly less than two years.
- Although
the applicant denied having participated in any criminal activity,
the Court notes that a witness identified him as one of the
perpetrators of the assault. It accepts therefore that his detention
could have initially been warranted by a reasonable suspicion of his
involvement in the commission of a criminal offence. It remains to be
ascertained whether the judicial authorities gave “relevant”
and “sufficient” grounds to justify the applicant’s
continued detention and whether they displayed “special
diligence” in the conduct of the proceedings.
- The
judicial authorities relied, in addition to the reasonable suspicion
against the applicant, on the risk of his absconding, reoffending or
obstructing the course of justice. In this respect they referred to
the gravity of the charge, the absence of a registered place of
residence or permanent employment in Moscow, the previous criminal
proceedings against him and the fact that the imputed offence had
been committed by an organised group.
- The
domestic courts consistently relied on the gravity of the charges as
the main factor for the assessment of the applicant’s potential
to abscond, reoffend or obstruct the course of justice. The
Court has repeatedly held that, although the severity of the sentence
faced is a relevant element in the assessment of 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 Letellier v. France, judgment of 26
June 1991, Series A no. 207, § 51; also see Panchenko
v. Russia, no. 45100/98, § 102, 8 February
2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; and Ilijkov, cited above, § 81).
- Another
ground for the applicant’s detention was the District Court’s
finding that the applicant did not live at his registered place of
residence in Bryansk and had no permanent residence or employment in
Moscow. The applicant consistently maintained that he had a permanent
place of residence and employment. It is not necessary for the Court
to determine whether the applicant had a permanent place of
residence. Even assuming that he did not have permanent residence in
Moscow, the mere absence of a fixed residence does not give rise to a
danger of absconding (see Pshevecherskiy v. Russia,
no. 28957/02, § 68, 24 May 2007, and Sulaoja
v. Estonia, no. 55939/00, § 64, 15 February
2005).
- The
domestic courts also referred to the fact that the applicant had been
prosecuted previously for a similar criminal offence. The Court
accepts that that factor was relevant in assessing the danger of
reoffending. Such a danger, if convincingly established, may lead the
judicial authorities to place and leave a suspect in detention in
order to prevent any attempts to commit further offences. It is
however necessary, among other conditions, that the danger be a
plausible one and the measure appropriate, in the light of the
circumstances of the case and in particular the past history and the
personality of the person concerned (see Clooth v. Belgium,
judgment of 12 December 1991, Series A no. 225, § 40).
In the present case the domestic courts did not specify the offence
for which the applicant had been prosecuted. The Government explained
that he had been prosecuted for disorderly behaviour, without
indicating however the specific acts imputed to him. Moreover, as the
charges against the applicant had been dropped, his guilt had never
been established by the competent judicial authorities. It is also
worth noting that the offence imputed to the applicant was allegedly
committed in 2002, that is four years prior to the commencement of
the present proceedings. It was not alleged that the applicant had
committed any administrative or criminal offences during those four
years. Given that the applicant has no criminal record, the Court is
not convinced that the risk of reoffending was sufficiently
established.
- In
any event, even assuming that the authorities could justifiably
consider that such a risk was initially present, the Court is not
persuaded that that ground could in itself justify the entire period
of the applicant’s detention. With the passage of time it
inevitably became less and less relevant. Nevertheless, over the
following months the courts’ reasoning
did not evolve to reflect the developing situation and to verify
whether at the advanced stage of the proceedings that ground retained
its sufficiency (compare Pihlak v. Estonia,
no. 73270/01, §§ 44 and 45, 21 June 2005).
62. The only other ground for the applicant’s continued
detention was the fact that the imputed offence had been committed by
an organised group. The Court accepts that in cases concerning
organised crime, involving numerous accused, the process of gathering
and hearing evidence is often a difficult task. Moreover, in such
cases the risk that a detainee if released might put pressure on
witnesses or might otherwise obstruct the proceedings is often
particularly high. All these factors can justify a relatively longer
period of detention. However, they do not give the authorities
unlimited power to extend this preventive measure (see Osuch v.
Poland, no. 31246/02, § 26, 14 November 2006; and
Celejewski v. Poland, no. 17584/04, §§
37-38, 4 May 2006). The fact that a person is charged with acting in
criminal conspiracy is not in itself sufficient to justify long
periods of detention, his personal circumstances and behaviour must
always be taken into account. There is no indication in the present
case that before his arrest the applicant had made any attempts to
intimidate witnesses or to obstruct the course of the proceedings in
any other way. In such circumstances the Court has difficulty
accepting that there was a risk of interference with the
administration of justice at the later stages of the proceedings.
Such risk was bound to gradually decrease as the trial proceeded and
the witnesses were interviewed (compare Miszkurka v. Poland,
no. 39437/03, § 51, 4 May 2006) The Court is not
therefore persuaded that, throughout the entire period of the
applicant’s detention, compelling reasons existed for a fear
that he would interfere with witnesses or otherwise hamper the
investigation of the case, and certainly not such as to outweigh the
applicant’s right to trial within a reasonable time or release
pending trial.
- No
other grounds have been invoked by the domestic courts. The
Government argued that the applicant had fled from the crime scene
and there was a risk that he would abscond again if released. The
applicant denied fleeing from justice and maintained that he
continued to live at his permanent place of residence and to work at
the same company. It is not necessary for the Court to determine
whether the applicant had been in hiding before his arrest. It is not
its task to assume the place of the national authorities who ruled on
the applicant’s detention or to supply its own analysis of
facts arguing for or against detention (see Nikolov v. Bulgaria,
no. 38884/97, § 74, 30 January 2003, and
Labita, cited above, § 152). That argument was
advanced for the first time in the proceedings before the Court and
the domestic courts never mentioned it in their decisions.
- The
Court further observes that when requesting an extension of the
applicant’s detention until 16 September 2006, the investigator
did not demonstrate the existence of specific facts relevant to the
grounds for continued detention, he only submitted that it was “not
opportune” to release the applicant. The Court is concerned by
the fact that the District Court accepted such an unelaborated
argument and extended the applicant’s detention, finding that
there was no reason to refuse the investigator’s request. The
District Court devoted no attention to discussion of the applicant’s
arguments that he had no criminal record, had a permanent place of
residence and employment in Moscow, and positive references. It
treated those arguments as irrelevant, holding that the gravity of
the charges carried a greater weight than the specific facts
militating in favour of the applicant’s release, and blamed the
applicant for the failure to advance more convincing arguments (see
paragraphs 15 and 16 above). The Court considers that the domestic
courts shifted the burden of proof to the applicant who was required
to demonstrate the absence of risk of absconding, reoffending or
interfering with the proceedings, failing which he was bound to
remain in detention throughout the proceedings. The Court reiterates
in this respect that any system of mandatory detention pending trial
is incompatible per se with Article 5 § 3 of the
Convention, it being incumbent on the domestic authorities to
establish and demonstrate the existence of specific facts outweighing
the rule of respect for individual liberty. 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 permissible only in exhaustively enumerated
and strictly defined cases (see Nakhmanovich v. Russia,
no. 55669/00, § 79, 2 March 2006, with further
references).
- Finally,
the Court notes that when deciding whether a person should be
released or detained, the authorities have an obligation under
Article 5 § 3 to consider alternative measures of
ensuring his or her appearance at trial. This Convention provision
proclaims not only the right to “trial within a reasonable time
or to release pending trial” but also lays down that “release
may be conditioned by guarantees to appear for trial” (see
Sulaoja, cited above, § 64 in fine, 15 February
2005, and Jabłoński, cited above, § 83).
In the present case the authorities never considered the possibility
of ensuring the applicant’s attendance by the use of a more
lenient preventive measure, although he asked many times to be
released on bail and provided the domestic courts with the personal
surety of a member of Parliament.
- The
Court has frequently found a violation of Article 5 § 3 of the
Convention in Russian cases where the domestic courts extended an
applicant’s detention relying essentially on the gravity of the
charges and using stereotyped formulae without addressing specific
facts or considering alternative preventive measures (see
Belevitskiy v. Russia, no. 72967/01, §§ 99
et seq., 1 March 2007; Khudobin v. Russia,
no. 59696/00, §§ 103 et seq., ECHR 2006 ...
(extracts); Mamedova v. Russia, no. 7064/05, §§ 72
et seq., 1 June 2006; Dolgova v. Russia, no. 11886/05,
§ §§ 38 et seq., 2 March 2006;
Khudoyorov v. Russia, cited above, §§ 172
et seq.; Rokhlina v. Russia, cited above, §§ 63
et seq.; Panchenko v. Russia, cited above, §§ 91
et seq.; and Smirnova v. Russia, nos. 46133/99
and 48183/99, §§ 56 et seq., ECHR 2003 IX
(extracts)).
- Having
regard to the above, the Court considers that by failing to address
specific facts or consider alternative “preventive measures”
and by relying essentially on the gravity of the charges, the
authorities extended the applicant’s detention on grounds
which, although “relevant”, cannot be regarded as
“sufficient” to justify its duration. In these
circumstances it would not be necessary to examine whether the
proceedings were conducted with “special diligence”.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. 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 100,000 euros (EUR) in respect of non-pecuniary
damage sustained as a result of detention without sufficient reasons.
- The
Government submitted that the applicant had claimed compensation for
non-pecuniary damage incurred through his criminal prosecution.
However, it was not the Court’s task to assess the
reasonableness of the charges against him. They therefore considered
that the applicant’s claim should be dismissed. In any event,
the claim was excessive. In their opinion, the finding of a violation
would constitute sufficient just satisfaction.
- The
Court observes that it has found a violation of Article 5 § 3 of
the Convention in that the duration of the applicant’s
continued detention was not based on sufficient grounds. It considers
that the applicant must have suffered frustration, helplessness and a
feeling of injustice as a consequence of the domestic authorities’
decision to keep him in custody without sufficient reasons. It finds
that the applicant has suffered non-pecuniary damage which cannot be
adequately compensated by the finding of a violation. The particular
amount claimed is, however, excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 5,000 under
this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the applicant’s detention 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
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
amounts 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 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President
