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FIRST
SECTION
CASE OF PETR PONOMAREV v. RUSSIA
(Application
no. 35411/05)
JUDGMENT
STRASBOURG
10
June 2010
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 Petr Ponomarev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35411/05) 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 Petr Andreyevich
Ponomarev (“the applicant”), on 1 September 2005.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant alleged, in particular, that a period of his detention had
not been covered by a judicial authorisation.
- On
20 March 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and lives in St Petersburg. The applicant
is a lawyer.
- On
25 June 2003 the applicant was arrested on suspicion of financial
wrongdoings. On 27 June 2003 the Smolninskiy District Court of
St Petersburg remanded him in custody.
- On
20 August, 21 October and 23 December 2003 and 21 January 2004 the
period of the applicant’s detention was extended. It does not
appear that the applicant lodged appeals against the extension
orders.
- On
17 February 2004 the first deputy prosecutor of St Petersburg set
aside the investigator’s decision to change the applicant’s
procedural status to that of an accused.
- On
18 February 2004 the Kuybyshevskiy District Court of St Petersburg
extended the applicant’s detention until 24 March 2004. The
applicant did not lodge an appeal.
- On
1 March 2004 the investigator issued a new decision to change the
applicant’s status to that of an accused.
- On
24 March 2004 the St. Petersburg Prosecutor’s Office referred
the case against the applicant to the Kirovskiy District Court for
trial.
- On
29 March 2004 the Kirovskiy District Court issued a decision fixing
the date of a preliminary hearing for 26 April 2004. The decision did
not mention the question of the applicant’s detention.
- On
26 April and 26 May 2004 hearings were adjourned.
- On
24 August and 21 December 2004 and 18 March 2005 the Kirovskiy
District Court extended the applicant’s detention, each time
for a further three months.
- On
11 April 2005 the St Petersburg City Court examined the applicant’s
appeal against the decision of 29 March 2004. The applicant
complained that he had been unlawfully held in custody because the
authorised period of his detention had expired on 24 March 2004 and
because the District Court had not taken any decision on the remand
measure. The City Court rejected the appeal, finding as follows:
“The court finds that the said decision is lawful,
justified and reasoned... The court had examined the issues listed in
Article 228 of the Code of Criminal Procedure, which was reflected in
the subsequent legal acts – of 24 August 2004 and others –
including the remand matters.”
- On
3 and 4 May 2005 the applicant made an objection to the trial judge.
He alleged that someone had approached his father and his counsel on
the judge’s behalf and told them that the judge would set the
applicant free in exchange for a large sum of money. Replying to the
prosecutor’s questions, the applicant was unable to furnish any
details of the alleged extortion, such as the date of the phone call.
Furthermore, the applicant claimed that the judge was biased because
she had not promptly dispatched his appeals to the City Court.
- The
trial judge rejected the objections as not supported by concrete
evidence. On 3 October 2005 the City Court upheld that decision on
appeal.
- On
6 June 2006 the Kirovskiy District Court found the applicant guilty
of misappropriation of a private company’s property and
sentenced him to three years’ imprisonment. On 29 May 2007 the
St Petersburg City Court upheld the conviction on appeal.
II. RELEVANT DOMESTIC LAW
- The
Russian Constitution provides that a judicial decision is required
before a defendant can be detained or his or her detention extended
(Article 22).
- The Code of Criminal Procedure (“CCrP”)
provides that the term of detention “during the trial”
(that is, after the case has been sent for trial) is calculated from
the date on which the court received the file up to the date on which
the judgment is given. The period of detention “during the
trial” 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 of the CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention from 17 February to 1 March
2004 and then from 24 March to 24 August 2004 had been effected
in breach of Article 5 § 1 which provides 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...”
A. Admissibility
- The
applicant claimed that his detention from 17 February to 1 March
2004 had been unlawful because in that period he had not had the
procedural status of an accused and, accordingly, a remand measure
could not have been applied to him. The Court observes that it was
open to the applicant to raise this issue in an appeal against the
detention order of 18 February 2004. It does not appear,
however, that he filed such an appeal. Furthermore, the period in
question had ended more than six months before the applicant
introduced his application to the Court on 1 September 2005. It
follows that this part of the complaint must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies and also as having been
introduced out of time.
- As
to the period from 24 March to 24 August 2004, the Court considers
that this part of the complaint 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
- The
applicant submitted that on 24 March 2004 the authorised period of
his detention had expired, but that the trial court had not made any
decision on the remand matter. It had been only on 24 August 2004
that the trial court had issued a decision, by which the preventive
measure had been extended for a further period of three months.
- The Government submitted that at the time when the
applicant’s case had been under consideration the domestic
courts had interpreted Article 255 of the Code of Criminal
Procedure as permitting the detention of an accused without a court
order for up to six months from the date of receipt of the case file
by the trial court. Even though in 2005 the Constitutional Court had
found that that practice was tainted with arbitrariness and therefore
incompatible with the Constitution, at the material time such
interpretation of Article 255 had been valid and endorsed by all
Russian courts, including the Supreme Court. For that reason, the
applicant’s detention after the date on which the case file had
been referred to the trial court was lawful in domestic terms.
- 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, among many other authorities, Khudoyorov v. Russia,
no. 6847/02, § 124, ECHR 2005 X).
- On
the facts, it is observed that on 24 March 2004, that is the day the
prosecutor submitted the file to the trial court, the period of the
applicant’s detention authorised by the decision of 18 February
2004 expired. However, no further decision on the remand matter was
taken until 24 August 2004.
- The
Court has already found a violation of Article 5 § 1 of the
Convention in many cases against Russia concerning the practice of
holding defendants in custody solely on the strength of the fact that
their case had been referred to the trial court. It held that the
practice of keeping defendants in detention without judicial
authorisation or clear rules governing their situation was
incompatible with the principles of legal certainty and the
protection from arbitrariness, which are common threads throughout
the Convention and the rule of law (see Isayev
v. Russia, no. 20756/04, §§
131-133, 22 October 2009; Yudayev v.
Russia, no. 40258/03, §§
59-61, 15 January 2009; Belov v. Russia, no. 22053/02,
§§ 90-91, 3 July 2008; Lebedev v. Russia, no.
4493/04, §§ 55-58, 25 October 2007; Shukhardin
v. Russia, no. 65734/01, §§ 84-85, 28 June
2007; Belevitskiy v. Russia, no. 72967/01, §§
88-90, 1 March 2007; Korchuganova v. Russia, no. 75039/01,
§ 57, 8 June 2006; and Khudoyorov, cited above, §§
147-151).
- The
Court’s findings in the above cases are applicable in the
instant case and the Government did not advance any argument
warranting a departure from the established case-law. Following the
expiration of the detention order on 24 March 2004, the applicant’s
detention was not covered by a judicial authorisation up until 24
August 2004. This situation was incompatible both with the Russian
Constitution and the requirements of Article 5 § 1 of the
Convention.
- In
the light of the foregoing considerations, the Court finds that there
has been a violation of Article 5 § 1 of the Convention on
account of the applicant’s detention from 24 March to 24 August
2004.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 § 1 of the Convention
that his objections to the trial judge had been unreasonably
rejected.
- The
Court observes that the applicant was unable to corroborate his
allegations about the alleged bias of the trial judge with any
factual submissions. He did not reply to the prosecutor’s
questions about the date or other details of the alleged extortion.
It follows therefore that his objection was unfounded and that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
unlawfulness of the applicant’s detention from 24 March to
24 August 2004 admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
