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FIRST
SECTION
CASE OF BUTUSOV v. RUSSIA
(Application
no. 7923/04)
JUDGMENT
STRASBOURG
22
December 2009
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 Butusov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7923/04) 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 Mikhail Sergeyevich
Butusov (“the applicant”), on 29 January 2004.
- The
applicant, who had been granted legal aid, was represented by Ms L.M.
Churkina, a lawyer practising in Yekaterinburg. The Russian
Government (“the Government”) were represented by Mr P.
Laptev and Mrs V. Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights.
- On
12 October 2006 the Court declared the application partly
inadmissible and decided to give notice of the complaint under
Article 5 § 4 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. On 27
September 2007 the President of the Chamber invited the Government to
provide further written observations on the admissibility and merits
of the applicant's complaint under Article 5 § 4.
- The
Government objected to the joint examination of the admissibility and
merits of the application. The Court examined their objection and
dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and lives in Snezhinsk, Chelyabinsk
region. He is currently serving a prison sentence in the Chelyabinsk
region.
- On
16 July 2003 the applicant was arrested on suspicion of robbery.
- On
18 July 2003 the Snezhinsk Town Court of the Chelyabinsk region (“the
Town Court”) released the applicant on an undertaking not to
leave the town.
- On
23 July 2003 the Town Court remanded the applicant in custody. It
held that his detention was justified on the ground of his previous
convictions, the gravity of the offence, and the risk that he would
abscond, obstruct investigation of the case, commit another crime or
hinder the execution of the sentence.
- On
25 July 2003 the applicant's counsel Ye. appealed against the
detention order of 23 July 2003. He contested the grounds on which
the applicant had been placed in detention. On the same date the Town
Court registered the appeal as no. 132.
- It
follows from the Government's submissions, confirmed by
a copy of the record of the outgoing mail of the Town Court, that on
28 July 2003 the Town Court sent copies of the grounds of appeal to
the applicant, the investigating authorities and the prosecutor's
office. On 4 August 2003 the Town Court sent a notification about the
examination of the appeal by the Regional Court on 14 August 2003 to
the detention facility in which the applicant was detained and to his
counsel. However, the Government did not submit any document
confirming that the applicant or his lawyer had received that
notification. On 7 August 2003 the appeal materials reached the
Chelyabinsk Regional Court (“the Regional Court”).
- According
to the applicant, neither he nor his lawyer received the notification
of the appeal hearing.
- On
14 August 2003 the Regional Court examined the appeal in the absence
of the applicant and his counsel. The Prosecutor, who was present at
the hearing, considered that the appeal should be dismissed. The
Regional Court upheld the detention order of 23 July 2003, finding it
lawful and duly reasoned.
- Subsequently
the Town Court extended the applicant's detention on 17 and 26
September 2003. The applicant did not appeal against those extension
orders.
- On
4 November 2003 the Town Court found the applicant guilty of
aggravated robbery and sentenced him to ten years' imprisonment. On
15 January 2004 the Regional Court upheld the applicant's
conviction and reduced the term of imprisonment to eight years.
- On
13 April 2005 the Deputy President of the Supreme Court of the
Russian Federation granted the applicant's request for supervisory
review of the judgment of 4 November 2003, as upheld on 15 January
2004, and remitted the case for examination on the merits to the
Presidium of the Regional Court. On 1 June 2005 the Presidium of the
Regional Court upheld the applicant's conviction.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Since
1 July 2002 criminal-law matters have been governed by the Code of
Criminal Procedure of the Russian Federation of 18 December 2001
(“the CCrP”).
- Article
108 of the CCrP provides that 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. An appeal may be lodged with a higher court within three
days against a judicial decision ordering or extending detention. The
appeal court must decide on the appeal within three days of its
receipt.
- Article
376 of the CCrP provides that the parties must be notified about the
date, time and venue of the appeal hearing no later than fourteen
days before it. The court shall decide whether the detainee should be
summoned to the hearing.
- On 22 January 2004 the Constitutional Court delivered
decision no. 66-O on a complaint about the Supreme
Court's refusal to permit a detainee to attend the appeal hearings on
the issue of detention. It held:
“Article 376 of the Code of Criminal Procedure
regulating the presence of a defendant remanded in custody before the
appeal court ... cannot be read as depriving the defendant held in
custody ... of the right to express his opinion to the appeal court,
by way of his personal attendance at the hearing or by other lawful
means, on matters relating to the examination of his complaint about
a judicial decision affecting his constitutional rights and freedoms
...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the appeal proceedings against the
detention order of 23 July 2003 had not complied with the
requirements of Article 5 § 4 of the Convention. In particular,
his appeal against the detention order of 23 July 2003 was examined
only on 14 August 2003 in his and his counsel's absence. Article 5 §
4 of the Convention reads as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Alleged unfairness of the proceedings concerning
review of the applicant's detention
- The
Government submitted that the applicant and his counsel had been duly
informed of the appeal hearing by notification, sent to them on
4 August 2003.
- The
applicant argued that neither he nor his counsel had been informed of
the date of the examination of their appeal. The Government failed to
submit to the Court any evidence to prove that the notice of the
hearing had in fact reached him and his counsel. Only in December
2006, while reading the materials of the criminal case, did his
mother learn that the examination of the appeal had taken place on 14
August 2003.
- The
Court reiterates that by virtue of Article 5 § 4, an arrested or
detained person is entitled to bring proceedings for review by a
court of the procedural and substantive conditions which are
essential for the “lawfulness”, in the sense of Article 5
§ 1, of his or her deprivation of liberty (see Brogan and
Others v. the United Kingdom, 29 November 1988, § 65, Series
A no. 154-B). Although it is not always necessary for the procedure
under Article 5 § 4 to be attended by the same guarantees as
those required under Article 6 § 1 of the Convention for
criminal or civil litigation, it must have a judicial character and
provide guarantees appropriate to the kind of deprivation of liberty
in question (see Reinprecht v. Austria, no. 67175/01, §
31, ECHR 2005- ..., with further references). The proceedings must be
adversarial and must always ensure equality of arms between the
parties. In the case of a person whose detention falls within the
ambit of Article 5 § 1 (c), a hearing is required (see Nikolova
v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 II).
The opportunity for a detainee to be heard either in person or
through some form of representation features among the fundamental
guarantees of procedure applied in matters of deprivation of liberty
(see Kampanis v. Greece, 13 July 1995, § 47,
Series A no. 318 B).
- Turning
to the circumstances of the present case the Court observes that on
14 August 2003 the Regional Court examined the applicant's appeal
against the detention order of 23 July 2003. The prosecutor was
present at the hearing and requested that the appeal be dismissed.
The applicant, who was in custody, was not brought to the hearing. As
to the applicant's counsel, the Government submitted that he had been
duly notified of the hearing. The applicant argued that counsel had
never received any notification. In that respect the Court observes
that the Government did not provide it with any evidence that the
notice of the hearing had in fact reached the applicant's counsel. In
these circumstances, the Court is not persuaded that the applicant's
counsel was duly notified of the appeal hearing of 14 August 2003.
- The
Court is of the view that to ensure equality of arms it was necessary
to give the applicant the opportunity to appear, either in person or
through some form of representation, at the same time as the
prosecutor, so that he could reply to the latter's arguments (compare
Kampanis, cited above, § 58). Given that neither the
applicant nor his counsel were present at the examination of the
applicant's appeal on 14 August 2003, whereas the prosecutor was
present and made submissions, the Court considers that those
proceedings did not meet the requirements of Article 5 § 4. The
Court also notes that there is nothing in the appeal decision of 14
August 2003 to suggest that the appeal court examined whether the
applicant's counsel had been duly notified of the appeal hearing and,
if he had not, whether the examination of the appeal should have been
adjourned or whether the applicant should have been brought to the
hearing.
- Finally,
the Court notes that the Government have not provided any evidence
that the applicant or his counsel were informed about the outcome of
the appeal proceedings or served with a copy of the decision of
14 August 2003. It
follows that the applicant was left in uncertainty as to the fate of
his appeal for a long time and was deprived of an effective check on
the lawfulness of his detention.
- Having
regard to the above, the Court concludes that the examination of the
applicant's appeal against the detention order of 23 July 2003 did
not satisfy the requirements of Article 5 § 4 of the Convention.
Accordingly, there has been a violation of that Article.
2. Speediness of the review of the applicant's
detention
- The
Government submitted that in accordance with procedure which existed
at the material time, scheduling of appeal hearings was done by the
first-instance court, which had also to transfer the criminal case to
the appeal court. In that respect the Government noted that the
domestic law did not set any time-limits for transferring the case
file to the appeal court.
- The
applicant maintained his complaint. He argued in particular that, in
breach of domestic law, it took the Regional Court more than three
days to examine the appeal.
- The
Court reiterates that Article 5 § 4 of the Convention, in
guaranteeing to persons detained a right to institute proceedings to
challenge the lawfulness of their detention, also proclaims their
right, following the institution of such proceedings, to a speedy
judicial decision concerning the lawfulness of detention and ordering
its termination if it proves unlawful (see Baranowski v. Poland,
no. 28358/95, § 68, ECHR 2000-III). The question whether the
right to a speedy decision has been respected must be determined in
the light of the circumstances of each case (see Rehbock v.
Slovenia, no. 29462/95, § 84, ECHR 2000 XII).
- Turning
to the circumstances of the present case, the Court firstly observes
that the appeal proceedings commenced on 25 July 2003, the date on
which the applicant's counsel lodged his grounds of appeal, and ended
on 14 August 2003, when the Regional Court examined and dismissed the
appeal. It follows that the appeal proceedings lasted twenty days.
- The
Court further observes that on 23 July 2003 the applicant was
remanded in custody on suspicion of robbery and in view of his
previous convictions, danger of absconding and interfering with the
proceedings. In his appeal against that detention order, the
applicant's counsel contested these grounds. In the Court's opinion,
these were straightforward matters, and it has not been argued by the
Government that the case in itself disclosed any complex features.
- The
Court also notes that the Government did not argue that the applicant
or his counsel had in some way contributed to the length of the
appeal proceedings. It therefore follows that the entire length of
the appeal proceedings is attributable to the domestic authorities.
The Town Court received the appeal on 25 July 2003. However, it was
not until 7 August 2003 that the appeal materials reached the
Regional Court. In that respect the Court cannot accept the
Government's argument that domestic law did not set any time-limits
for transferring the criminal case from the first-instance court to
the appeal court. It reiterates that it is for the State to organise
its judicial system in such a way as to enable the courts to comply
with the requirements of Article 5 § 4 (see, mutatis
mutandis, R.M.D. v.
Switzerland, 26 September 1997, § 54, Reports of
Judgments and Decisions 1997 VI). In
any event, the Regional Court received the appeal materials on 7
August 2003 and examined the appeal only on 14 August 2003. The
Government did not provide any justification for this delay. In that
respect the Court reiterates that where an individual's personal
liberty is at stake, the Court has set up very strict standards
concerning the State's compliance with the requirement of speedy
review of the lawfulness of detention (see, for example, Kadem
v. Malta, no. 55263/00, §§ 44-45, 9 January 2003 where
the Court considered a delay of seventeen days in deciding on the
lawfulness of the applicant's detention excessive, and Rehbock,
cited above, §§ 85-86, where the Court considered that a
delay of twenty-three days on deciding on the application for release
was excessive).
- Having
regard to the above, the Court considers that the period of twenty
days cannot be considered compatible with the “speediness”
requirement of Article 5 § 4. There has therefore been a
violation of that provision.
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 5,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that the applicant had failed to substantiate
his claim and therefore it had to be rejected.
- The
Court considers that the domestic courts' failure to review the
lawfulness of the applicant's detention in conformity with the
requirements of Article 5 § 4 caused the applicant non-pecuniary
damage, such as stress and frustration, which cannot be compensated
by the findings of violations. Making its assessment on an equitable
basis, the Court awards the applicant EUR 1,800 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses.
Accordingly, the Court makes no 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 remainder of the application
admissible.
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the examination of the
applicant's appeal against the detention order of 23 July 2003 in the
absence of the applicant and his counsel;
- Holds that there has been a violation of Article
5 § 4 of the Convention on account of the delay in examination
of the applicant's appeal against the detention order of 23 July
2003;
- 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 1,800 (one thousand eight
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Nina Vajić
Registrar President
