FIRST SECTION

CASE OF KRIKUNOV v. RUSSIA

(Application no. 13991/05)

JUDGMENT

STRASBOURG

4 December 2014

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 Krikunov v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Isabelle Berro-Lefèvre, President,
	Elisabeth Steiner,
	Khanlar Hajiyev,
	Mirjana Lazarova Trajkovska,
	Julia Laffranque,
	Ksenija Turković,
	Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 13 November 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 13991/05) 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 Vladimir Aleksandrovich Krikunov (“the applicant”), on 1 February 2005.
2.  The applicant, who had been granted legal aid, was represented by Ms O. Preobrazhenskaya, a lawyer practising in Strasbourg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant complained, in particular, that his detention on remand had not been based on relevant and sufficient grounds in violation of Article 5 § 3 of the Convention.
4.  On 19 October 2009 the above complaint was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1967 and before his conviction lived in the Volgograd Region.
A.  First conviction
6.  On 28 March 2003 the Novoannenskiy District Court of Volgograd (“the District Court”) convicted the applicant of theft and robbery. The applicant was given a suspended sentence of four years’ imprisonment, conditional upon three years’ probation.
B.  Subsequent criminal proceedings against the applicant and second conviction
7.  On 1 December 2003 the applicant was arrested on suspicion of robbery and manslaughter.
8.  On 3 December 2003 the District Court held that the applicant should be detained on remand. The court held as follows:
“The applicant is charged with two crimes, one of which is a grave crime representing a high risk of public danger. [He] had previously been convicted of a grave crime, and had not completed his sentence. All these crimes were committed by [the applicant] in a state of alcoholic intoxication. [The applicant] has no family, does not work, and abuses alcohol. [He] has no means of subsistence, which may result in his committing other crimes.
Having regard to the circumstances of the case, and the [applicant’s] personality, the court has grounds to believe that if not detained [the applicant] may continue his criminal activity, and abscond from the investigation and the court ...”
9.  On 27 December 2003 the pre-trial investigation was completed and charges were brought against the applicant under Articles 161 § 2 and 109 § 1 of the Criminal Code.
10.  On 1 January 2004 the Novoannenskiy District Prosecutor (“the District Prosecutor”) approved the bill of indictment.
11.  On 18 January 2004 the applicant applied to the District Court seeking to have the custodial measure replaced by an undertaking not to leave his place of residence.
12.  On 2 February 2004 the District Court, having repeated the reasoning applied on 3 December 2003 and having noted the absence of any grounds for altering the preventive measure, dismissed the applicant’s request. On 6 April 2004 the Volgograd Regional Court (“the Regional Court”) upheld the decision of 2 February 2004 on appeal.
13.  On 17 May 2004 the applicant’s criminal case was sent to the District Court for trial.
14.  On 1 June 2004 the District Court scheduled the opening date of the trial and ordered that the preventive measure should remain unchanged.
15.  On 15 June 2004 the District Court referred the case to the District Prosecutor in order to enable the applicant, his co-accused and the victims to study the case file. The court further held that the preventive measure in respect of the applicant should remain unchanged.
16.  On 28 June 2004 the District Prosecutor resubmitted the case to the District Court for trial.
17.  On 12 July 2004 the District Court scheduled the opening date of the trial and held that the preventive measure in respect of the applicant should remain unchanged.
18.  On 23 July 2004 the applicant submitted a written waiver of his right to legal representation.
19.  On 4 August 2004 the District Court convicted the applicant of robbery and manslaughter and, having taken into account the applicant’s previous sentence of 28 March 2003, sentenced him to four years and six months’ imprisonment. The applicant appealed.
20.  On 18 January 2005 the Regional Court quashed the judgment of 4 August 2004 in so far as the charges of robbery were concerned, upheld the rest of the judgment on appeal and reduced the sentence to four years and one month’s imprisonment.
21.  Later the applicant brought proceedings seeking to have his conviction of 4 August 2004 reviewed in the light of newly-discovered circumstances. However, on 25 December 2007 the Regional Court in the final instance dismissed his request.
C.  Third conviction
22.  On 11 July 2008 the District Court convicted the applicant of robbery and illegal possession of firearms and sentenced him to four years’ imprisonment, conditional upon four years’ probation.
23.  The applicant appealed, but later withdrew his appeal. His subsequent attempt to have the judgment reviewed by way of supervisory review was unsuccessful.
D.  Civil proceedings
24.  Following a request from the applicant, on 27 November 2007 the District Court recognised the applicant’s right to inherit after his mother’s death.
II.  RELEVANT DOMESTIC LAW
25.  “Preventive measures” or “restrictive measures” can be imposed on a defendant in order to assure the execution of a sentence if one is subsequently imposed, or for extradition purposes (Article 97 § 2 of the Russian Code of Criminal Procedure (“the Code”).
26.  “Preventive measures” or “restrictive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 98 of the Code).
27.  The court may remand the defendant in custody provided there are grounds for believing that he might abscond, continue criminal activities, threaten a witness or other parties to the criminal proceedings, destroy evidence, or otherwise interfere with administration of justice (Article 97 § 1 of the Code).
28.  When deciding whether to remand an accused in custody, the competent authority is required to take into account the seriousness of the charge, information on the defendant’s character, his or her profession, age, state of health, family status and other circumstances (Article 99 of the Code).
29.  The defendant may be remanded in custody if the charge carries a sentence of at least two years’ imprisonment and it is not possible to apply a less severe preventive measure (Article 108 § 1 of the Code).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
30.  The applicant complained that his detention on remand in the second set of the criminal proceedings against him had not been based on relevant and sufficient grounds. He relied on Article 5 § 3 of the Convention, which provides as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial ...”
31.  The Government contested that argument with reference to the reasons advanced by the domestic court in the choice of the preventive measure and considered that there had been no violation of Article 5 § 3 of the Convention in the present case.
32.  The applicant maintained his complaint. He noted, in particular, that the reasons put forward by the domestic court for his detention prior to 1 June 2004 had not been supported by specific facts and that his detention after 1 June 2004 had been maintained without reference to any reasons or mention of any specific time-limits. Furthermore, at no stage of the trial had the domestic court considered whether his detention had exceeded a reasonable time or whether it might have been possible to apply a less stringent preventive measure.
A.  Admissibility
33.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
1.  General principles
34.  The Court first reiterates that, in determining the length of pre-trial detention under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day when the charge is determined, even if only by a court of first instance, or, possibly, when the applicant is released from custody pending criminal proceedings against him (see Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012, with further references).
35.  The question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see Idalov, cited above, § 139, and Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).
36.  The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a prerequisite for the lawfulness of the continued detention. However, after a certain time has elapsed it no longer suffices. In such cases, the Court must establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see Idalov, cited above, § 140, and Suslov v. Russia, no. 2366/07, § 86, 29 May 2012, with further references).
37.  The responsibility lies primarily with 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, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of a public interest which justifies a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in those decisions and of the established facts stated 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 (see Idalov, cited above, § 141, and McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006‑X).
2.  Application of those principles in the present case
38.  The applicant was arrested on 1 December 2003 and convicted on 4 August 2004. Accordingly, the period to be taken into consideration lasted eight months.
39.  It was not disputed between the parties that the applicant was arrested on the strength of a reasonable suspicion of having committed two crimes.
40.  The Court notes that the decision of the domestic court of 3 December 2003 to apply a custodial measure to the applicant was based on a number of considerations, including the gravity of the charges against the applicant, the applicant’s previous conviction for a grave crime and his uncompleted sentence for that conviction, the fact that the applicant abused alcohol and that the crimes with which he was charged and the crime of which he had been previously convicted had all been committed in a state of alcoholic intoxication. Furthermore, the domestic court considered that, in view of the fact that he did not have a family, did not work and had no income (see paragraph 8 above), there was a risk of the applicant’s committing other crimes and absconding. The above reasoning was subsequently reiterated by the domestic court on 2 February 2004 when it examined and rejected the applicant’s request for release, having established no grounds for replacing detention on remand with a more lenient preventive measure (see paragraph 12 above). Taking into account the specific reasons advanced by the domestic court on both occasions, the Court is willing to accept that at that stage of the proceedings the applicant’s detention was based on relevant and sufficient grounds.
41.  By contrast, the Court notes that at a subsequent stage of the proceedings, during the trial, the applicant’s detention was not justified by any grounds. In particular, after receiving the case for trial, the District Court maintained the custodial measure in respect of the applicant on 1 June, 15 June and 12 July 2004 (see paragraphs 14, 15 and 17 above), holding that the preventive measure “should remain unchanged”. Even assuming that the domestic court viewed the circumstances of the case and the applicant’s personality as self-evident for the purpose of justifying the applicant’s continued detention until the hearing in August 2004, the Court does not consider that this in itself absolved the domestic court from the obligation to set out reasons for coming to this conclusion. It reiterates that where circumstances that could have warranted a person’s detention may have existed but were not mentioned in the domestic decisions, it is not the Court’s task to establish them and to take the place of the national authorities which ruled on the applicant’s detention (see Bykov v. Russia [GC], no. 4378/02, § 66, 10 March 2009, with further references).
42.  In the light of the foregoing, the Court considers that the domestic courts failed to convincingly demonstrate throughout the proceedings the existence of specific indications of a genuine requirement of public interest which outweighed the rule of respect for individual liberty in the applicant’s case. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.
43.  There has accordingly been a violation of Article 5 § 3 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
44.  The applicant further complained under Article 3 of the Convention about the conditions of his pre-trial detention and his alleged infection with tuberculosis, under Article 5 about the unlawfulness of his arrest, his detention pending trial in excess of the time-limit provided in the domestic law, and the failure of the domestic authorities to make the charges against him known to him in good time. Lastly, he complained under Article 6 of the Convention about various irregularities in the criminal proceedings against him in 2003, 2003-2005 and 2008, and under Article 1 of Protocol No. 1 that the property which he inherited after his mother’s death had been sold while he was serving his sentence.
45.  The Court has examined the above complaints, as submitted by the applicant. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
46.  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
47.  The applicant claimed 15,400 euros (EUR) in respect of non‑pecuniary damage.
48.  The Government submitted that if the Court were to find a violation, the finding of such a violation would in itself constitute sufficient just satisfaction.
49.  The Court observes that it has found the applicant’s continued detention on remand to have been in breach of Article 5 § 3 of the Convention. The applicant must have suffered frustration and distress on account of that infringement of his right to liberty. Having regard to these considerations, and judging on an equitable basis, the Court finds it reasonable to award the applicant EUR 800 under this head, plus any tax that may be chargeable on this amount.
B.  Costs and expenses
50.  As the applicant did not claim costs and expenses, the Court makes no award under this head.
C.  Default interest
51.  The Court considers it appropriate that the default interest rate 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
1.  Declares, unanimously, the complaint under Article 5 § 3 of the Convention admissible and the remainder of the application inadmissible;

2.  Holds, by six votes to one, that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds, by six votes to one,
(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 800 (eight hundred euros), plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of non-pecuniary damage;
(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;

4.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Isabelle Berro-Lefèvre
	Registrar	President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Dedov is annexed to this judgment.
I.B.L.
S.N.

DISSENTING OPINION OF JUDGE DEDOV
I regret that I cannot agree with my colleagues who have found a violation of Article 5 § 3 of the Convention in this case. I will explain my doubts as follows.
According to the facts established by the domestic authorities, the applicant committed the same crime within a year. Initially, he was convicted of robbery and given a suspended sentence. He had no job and no profession, so the risk of recidivism was high. The Court therefore agreed with the conclusions of the domestic courts and supported their reasoning concerning the risk that the applicant would abscond and reoffend (see paragraph 40 of the judgment).
The Court found a violation only in respect of detention during the trial, on account of a lack of reasons. Firstly, it should be noted that Article 5 § 3 requires that everyone be entitled to trial within a reasonable time, and the trial against the applicant lasted from 1 June to 4 August, 2004, so that was quite a short period of time.
Secondly, Article 5 § 3 enshrines the right to be released pending trial if the reasons given by the national authorities are no longer relevant and sufficient to justify continued detention. This is what the Court should examine, but this was not what happened. I believe, though, that were still serious reasons for detention at that time, and note that the applicant did not provide any counter-arguments.
My conclusions are supported by the Court’s case-law which should have been applied in this case. In Wemhoff v. Germany (27 June 1968, Series A no. 7) the Court distributed the burden of proof between the authorities and the detainee:
“12.  ... It is for [the national authorities] to mention the circumstances which led them, in the general interest, to consider it necessary to detain a person suspected of an offence but not convicted. Likewise, such a person must, when exercising his remedies, have invoked the reasons which tend to refute the conclusions drawn by the authorities from the facts established by them, as well as other circumstances which told in favour of his release.”
In Van der Tang v. Spain (13 July 1995, Series A no. 321) the Court examined both the length of the proceedings and the risk of absconding:
“76.  The risk of the applicant’s absconding persisted throughout the whole of his detention on remand, the protracted length of which ... was not attributable to any lack of special diligence on the part of the Spanish authorities.”
In similar recent cases the Court has not found a violation of Article 5 § 3 (see, for example, Sigarev v. Russia, no. 53812/10, §§ 51‑57, 30 October 2014, and Zimin v Russia, no. 48613/06, §§ 33-42, 6 February 2014). The Court’s approach in Zimin was completely different:
“38.  The Court notes, with regret, that in the remaining three detention orders the domestic courts did not mention this fact explicitly. Nevertheless, it is prepared to accept, on the basis of the overall context of the case, that they evaluated the “risk of absconding”. That fact created a strong presumption against application of alternative measures of restraint.
39.  Regard being had to the above, the Court considers that, in the particular circumstances of the case, a substantial risk of the applicant’s absconding persisted throughout his eight-month detention and accepts the domestic courts’ finding that no other measures to secure his presence would have been appropriate.
40.  The Court therefore concludes that there were relevant and sufficient grounds for the applicant’s continued detention. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings.
41.  The Court notes that, following the applicant’s placement in custody on 29 April 2006, the investigation was completed within less than four months and the District Court opened the trial, which took slightly over four months. There is nothing in the materials submitted to the Court to show any significant period of inactivity on the part of the prosecution or the court. In such circumstances, the competent domestic authorities cannot be said to have displayed a lack of special diligence in handling the applicant’s case.
42.  There has accordingly been no violation of Article 5 § 3 of the Convention.”
Lastly, a lack of reasoning should not automatically lead to a finding of a violation of the Convention without taking all the circumstances into account. In the real world a domestic judge who made such a finding would have to take responsibility for his or her decision should the crime be committed again by the detainee after being released.