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FIFTH
SECTION
CASE OF SHCHEGLYUK v. RUSSIA
(Application
no. 7649/02)
JUDGMENT
STRASBOURG
14
December 2006
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 Shcheglyuk v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr A.
Kovler,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 20 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7649/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vitaliy Viktorovich
Shcheglyuk (“the applicant”), on 16 November 2001.
- The
applicant was represented before the Court by Mr Ye. Ievlev, a lawyer
practising in St. Petersburg. The Russian Government (“the
Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
5 June 2005 the Court decided to communicate the complaint concerning
the length of the applicant's pre-trial 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
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 1970 and lives in St. Petersburg.
- On
5 July 1993 the Investigations Division of the St. Petersburg police
department opened a criminal case into extortion committed by an
organised criminal group.
- On
5 July 2000 an arrest warrant was issued against the applicant. On 12
July 2000 he was placed on the list of fugitives from justice.
- On
12 December 2000 the applicant was apprehended and placed in custody.
He was charged with organisation of, and participation in, a criminal
enterprise and unlawful possession of firearms (Articles 209, 210 and
222 of the Russian Criminal Code).
- On
9 February 2001 the prosecutor of the Primorskiy district of
St. Petersburg extended the applicant's detention to 12 March
2001.
- On
12 February 2001 the applicant's counsel asked the Primorskiy
District Court of St. Petersburg to release the applicant on bail. He
submitted that the applicant had a permanent place of residence and
employment in St. Petersburg, that he had to provide for his wife and
a small child, that he had never attempted to abscond and that the
strength of evidence was not sufficient to warrant his detention.
- On
19 February 2001 the Primorskiy District Court refused the
application for release. It found that the investigators had had
(unspecified) grounds to charge the applicant and to place him in
custody, that the preventive measure had been imposed lawfully
because the applicant was charged with particularly serious offences
and because he had a previous conviction of a particularly serious
offence. Furthermore, pursuant to Article 96 of the RSFSR Code of
Criminal Procedure, the dangerousness of the imputed crimes could be
the sole ground for placement in custody. The applicant did not
appeal against the decision.
- On
13 March and 11 April 2001 the prosecutor of the Primorskiy district
granted further extensions of the applicant's detention until 12 and
27 April 2001.
- On
11 April 2001 the applicant's counsel introduced a new application
for release, referring to the insufficient evidentiary basis for the
charges against the applicant.
- On
26 April 2001 the Primorskiy District Court refused the application
for release. It held that the extension of detention had been lawful
and justified because the extension order had been issued within the
statutory time-limits and because the applicant was charged with
particularly grave crimes, whose dangerousness alone was a sufficient
ground for his detention. Noting the applicant's positive reference
from his workplace and the fact that he had a wife and ailing child
as dependants, the court stated that these circumstances would be
taken into account as extenuating circumstances during the
examination of the merits of the charge.
- On 22 May 2001 the St. Petersburg City Court upheld
the decision of 26 April 2001, on an appeal by the applicant's
lawyer. The entire reasoning ran as follows:
“There have been no breaches of the RSFSR Code of
Criminal Procedure either when the preventive measure in the form of
placement in custody was imposed on [the applicant], or when the
detention was extended – the first-instance court has correctly
found so in its decision and the appellant does not contest it. [The
applicant] is charged with particularly serious crimes. The choice of
the preventive measure is justified, as are justified all further
extensions of his detention.”
- On
3 May 2001 the applicant was committed for trial before the
St. Petersburg City Court.
- On
9 June 2001 the St. Petersburg City Court held a directions hearing.
It ordered the joinder of the applicant's case with another case for
organisation of a criminal enterprise against twenty defendants. The
court refused the applicant's lawyer's new application for release on
bail on the ground that the applicant was charged with “crimes
presenting grave public danger”.
- On
28 December 2001 the Supreme Court of the Russian Federation examined
appeals against the decision of 9 June 2001, lodged by eight
defendants, including the applicant. It found as follows:
“Preventive measures in respect of all defendants,
including Mr A[.] and [the applicant] who appealed against this part
of the decision, were imposed in accordance with the law. The [city]
court did not commit any breaches of the criminal procedure law which
could have called for quashing of that decision”.
- On
4 March 2002 the applicant filed an application for release. He
referred to financial difficulties experienced by his wife and sick
child in the absence of his support, his deteriorating health and an
insufficient evidentiary basis for the case against him.
- On 13 March 2002 the St. Petersburg City Court
examined his application for release and three applications by his
co-defendants and refused release in the following terms:
“[The applicant and three co-defendants] are
charged with particularly serious crimes and the prosecutor adduced
evidence in support of the charge... Their placement in custody is
directly linked to the gravity of the charge and until such time as
the merits of the case have been examined, neither hard conditions of
detention, nor the defendants' state of health, even if they suffer
from various diseases..., nor the conditions of their families' lives
may be considered as privileged or sufficient grounds for changing
the preventive measure [imposed on them].”
The
applicant did not appeal against the decision.
- On
1 July 2002 the St. Petersburg City Court, of its own motion,
extended the detention of the applicant and sixteen other defendants
until 30 September 2002 on the sole ground that they were
charged with particularly serious crimes. The defendants were neither
present nor represented.
- On
16 September 2002 the Supreme Court of the Russian Federation quashed
the decision of 1 July 2002 because the defendants had not been
apprised of the hearing concerning the extension of their detention
and because no hearing record had been compiled. The remand matter
was referred for a fresh examination. The Supreme Court also rejected
the applicant's request for release, stating that his arguments would
be taken into account during the new examination.
- On
25 September 2002 the St. Petersburg City Court issued two decisions
concerning remand matters. The first decision extended the detention
period in respect of the applicant and sixteen other defendants to 30
September 2002 and the second decision granted a further extension to
30 December 2002. The extension orders were justified as follows:
“The gravity of the charges carrying a term of
imprisonment of more than two years, is so great that until such time
as the merits of the charges have been considered, neither hard
conditions of detention in the remand centre, nor the state of health
of the defendants – even though some of them are disabled, nor
the conditions of their families' lives may be considered as
privileged or sufficient grounds for changing the preventive measure
[imposed on them]...
The court cannot accept the argument by the defence
about the length of the proceedings because during that entire period
the main ground for adjourning court hearings was counsel's absences
for various causes.”
- On
23 December 2002 the St. Petersburg City Court released the applicant
from custody against a written undertaking not to leave the town.
- On
15 July 2004 the St. Petersburg City Court gave judgment. The
applicant was acquitted of all charges for lack of incriminating
evidence. Many of his co-defendants were sentenced to a term of
imprisonment.
- On
17 March 2005 the Supreme Court of the Russian Federation examined
notices of appeal lodged by the applicant's co-defendants but not by
the applicant himself and upheld the judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (Law of 27 October 1960, “the old CCrP”). From 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
- Before 14 March 2001, pre-trial detention was
authorised if the accused was charged with a criminal offence
carrying a sentence of at least one year's imprisonment (Article 96).
The amendments of 14 March 2001 repealed the provision that permitted
defendants to be remanded in custody on the sole ground of the
dangerous nature of the criminal offence they were charged with. The
new CCrP reproduced the amended provisions (Articles 97 § 1 and
108 § 1) and added that a defendant should not be remanded in
custody if a less severe preventive measure was available.
- After the arrest the suspect is placed in custody
pending the investigation. The period of detention pending 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 97 of
the old CCrP, Article 109 of the new CCrP).
- Before 14 March 2001 the old CCrP set no time-limit
for detention during the trial. On 14 March 2001 a new Article 239-1
was inserted which established that the period of detention during
the trial could not generally exceed six months from the date the
court received the file. That limitation did not apply to defendants
charged with particularly serious criminal offences. The new CCrP
establishes that the 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the length of his pre-trial detention had
not been justified in breach of Article 5 § 3 of the Convention,
which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial.”
A. Admissibility
- The Government claimed that the applicant had failed
to exhaust domestic remedies. Following his acquittal he could have
filed a civil claim for pecuniary and non-pecuniary damages arising
from unlawful prosecution and detention. Furthermore, he had not
filed an appeal against the Primorskiy District Court's decision of
19 February 2001 and two extension orders by the St. Petersburg City
Court of 25 September 2002.
- The applicant retorted that at the material time he
had unsuccessfully pleaded all domestic authorities for release.
- As
regards the possibility for the applicant to file a civil action for
damages incurred through unlawful prosecution and detention, the
Court reiterates that the right to trial within a reasonable time or
to release pending trial is not the same as the right to receive
compensation for unlawful detention. Paragraph 3 of Article 5 of the
Convention covers the former and paragraph 5 of Article 5 the latter.
The court invited to rule on an action for damages caused by unlawful
detention examines the matter after the events and therefore does not
have jurisdiction to order release if the detention is unlawful or
has exceeded a “reasonable time”. A civil action for
damages has accordingly no bearing on the question of exhaustion of
domestic remedies in respect of the applicant's complaint under
Article 5 § 3 (see, most recently, Nakhmanovich v. Russia
(dec.), no. 55669/00, 28 October 2004; and also Tomasi v.
France, judgment of 27 August 1992, Series A no. 241 A,
§ 79).
- The
Court will next examine the Government's contention that the
applicant failed to appeal against three extension orders. It
reiterates that the purpose of the rule requiring domestic remedies
to be exhausted is to afford the Contracting States the opportunity
of preventing or putting right the alleged violations before those
allegations are submitted to the Court (see, among many other
authorities, Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-V). In the context of an alleged violation of Article 5 §
3 of the Convention, this rule requires that the applicant give the
domestic authorities an opportunity to consider whether his right to
trial within a reasonable time has been respected and whether there
exist relevant and sufficient grounds continuing to justify the
deprivation of liberty.
- Following
his arrest on 12 December 2000 the applicant continuously remained in
custody until his release on 23 December 2002. It is not disputed
that he did not lodge an appeal against the District Court's decision
of 19 February 2001 confirming the lawfulness of his detention and
rejecting his application for release. He did, however, challenged a
later decision of the District Court before the City Court which, on
22 May 2001, held that his arrest and the entire intervening period
of detention had been lawful and justified (see paragraph 15 above).
In these circumstances, the Government's objection of non-exhaustion
of domestic remedies must be dismissed in so far as it concerned the
applicant's failure to appeal against the decision of 19 February
2001.
- The
most recent date on which an appeal court examined the remand issues
concerning the applicant was 16 September 2002 when the Supreme Court
quashed the City Court's extension order that had been issued on
1 July 2002 in the absence of detainees and their
representatives. On 25 September 2002 the City Court issued two
new extension orders prolonging the applicant's detention. Since the
applicant did not file an appeal, he did not give an opportunity to
the Supreme Court to consider whether these further extensions were
compatible with his Convention right to trial within a reasonable
time or release pending trial. The Court accepts therefore the
Government's objection of non-exhaustion of domestic remedies in so
far as it concerned the applicant's failure to appeal against the
City Court's extension orders of 25 September 2002.
- Accordingly,
the Court declares inadmissible the applicant's complaint under
Article 5 § 3 in the part concerning the period after
25 September 2002 and until his release on 23 December 2002. The
Court further notes that, in so far as the complaint concerned the
applicant's detention before 25 September 2002, it is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's detention during the
investigation stage had been compatible with the requirements of the
RSFSR Code of Criminal Procedure which permitted holding the persons
charged with particularly serious criminal offences in custody for up
to eighteen months. After the beginning of the trial, the applicant's
detention was extended on several occasions because of the gravity of
the charges against him. The length of the trial was accounted for by
“objective causes”, such as the victims' and counsel's
failure to appear, illness of a defendant, the presiding judge's
involvement in other proceedings and the need to decide on motions
and requests lodged by the defendants.
- The
Court notes that the domestic authorities consistently relied on the
gravity of the charges against the applicant as the sole factor
justifying the deprivation of liberty. Even though the circumstances
that could have warranted his detention may have existed, they were
not mentioned in the domestic decisions and it is not the Court's
task to establish them and take the place of the national authorities
who ruled on the applicant's detention (see Panchenko v. Russia,
no. 45100/98, §§ 99 and 105, 8 February 2005;
Ilijkov v. Bulgaria, no. 33977/96, § 86, 26 July 2001).
- As
regards the domestic authorities' reliance on the gravity of the
charges as the sole and decisive element, the Court has repeatedly
held that, although the severity of the sentence faced is a relevant
element in the assessment of the risk of absconding or re-offending,
the need to continue the deprivation of liberty cannot be assessed
from a purely abstract point of view, taking into consideration only
the gravity of the offence. Nor can continuation of the detention be
used to anticipate a custodial sentence (see Panchenko, cited
above § 102; Ilijkov, cited above, § 81; and
Letellier v. France, judgment of 26 June 1991, Series A no.
207, § 51). This is particularly true in the Russian legal
system where the characterisation in law of the facts – and
thus the sentence faced by the applicant – is determined by the
prosecution without judicial review of the issue whether the evidence
that has been obtained supports a reasonable suspicion that the
applicant has committed the alleged offence (see Khudoyorov v.
Russia, no. 6847/02, § 180, 8 November 2005).
Counsel for the applicant repeatedly pleaded for his release,
pointing out that the evidentiary basis for the charges against his
client was deficient and weak; that argument, however, was never
addressed by the domestic courts. As matters later transpired, the
applicant was finally acquitted of all charges for the lack of
incriminating evidence.
- It
is of particular concern for the Court that in the present case the
domestic courts refused to take into account any specific facts put
forward by the applicant and his counsel in the applications for
release. The courts expressly held that the gravity of the charges
carried such a preponderant weight that no other circumstances could
have obtained the applicant's release (see, for instance, the City
Court's decision cited in paragraph 20 above). The Court reiterates
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 concrete facts outweighing the rule of respect for
individual liberty (see Rokhlina v. Russia, no. 54071/00,
§ 67, 7 April 2005, with further references). In the
instant case, beyond a reference to the applicant's past conviction
in just one decision, the domestic authorities did not mention any
concrete facts corroborating the detention orders.
- At
no point in the proceedings did the domestic authorities consider
whether the length of the applicant's detention had exceeded a
“reasonable time” within the meaning of Article 5 §
3 of the Convention. The Government's contention that the maximum
time-limit permitted by the domestic law was not exceeded, is not a
decisive element for the Court's assessment. The calculation of the
domestic time-limits depended solely on the gravity of the charges
(see paragraphs 29 and 30 above) which, as the Court has observed,
was decided upon by the prosecution and was not subject to an
effective judicial review.
- The
Court further observes that during the entire period under
consideration the authorities did not consider the possibility of
ensuring his attendance by the use of other “preventive
measures” – such as bail – which are expressly
provided for by Russian law to secure the proper conduct of criminal
proceedings. In that context, the Court would emphasise that under
Article 5 § 3 the authorities are obliged to consider
alternative measures of ensuring his appearance at trial when
deciding whether a person should be released or detained. Indeed, the
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 Khudoyorov, cited above, § 183; Dolgova
v. Russia, no. 11886/05, § 47, 2 March 2006).
Given that the applicant's trial would not be able to begin for a
considerable time owing to events wholly unrelated to his conduct,
the authorities should either have considered having recourse to such
alternative measures or at minimum explained in their decisions why
such alternatives would not have ensured that the trial would follow
its proper course. This failure is made all the more inexplicable by
the fact that after 1 July 2002 the Code of Criminal Procedure
expressly requires the domestic courts to consider less restrictive
“preventive measures” as an alternative to custody.
- Finally,
the Court observes that the City Court's decisions extending the
applicant's detention during the trial had no regard to his
individual circumstances. The trial court used the same summary
formula to extend detention of seventeen defendants, without
describing their personal situation in any detail. The Court
reiterates that this approach is incompatible, in itself, with the
guarantees enshrined in Article 5 § 3 since it has permitted the
continued detention of a group of persons without a case-by-case
assessment of the grounds for detention or compliance with the
“reasonable-time” requirement in respect of each
individual member of the group (see Khudoyorov, § 186;
and Dolgova, § 49, both cited above).
- The
Court finds that by failing to address concrete relevant facts and by
relying on the gravity of the charges, the authorities failed in
their duty to justify the applicant's detention pending trial.
There
has therefore been a violation of Article 5 § 3 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 3 of the Convention about the
inhuman conditions of his detention and under Article 6 of the
Convention about the trial court's refusal to provide him with a copy
of the cassette on which statements by a prosecution witness had been
recorded.
- The
Court notes that the applicant did not complain about his conditions
of detention to any domestic authority and did not lodge an appeal on
the merits after he had been acquitted. It follows that this part of
the application must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
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.”
A. Damage
- The
applicant claimed 10,700 euros (EUR) in respect of pecuniary damage,
representing his loss of earnings during the detention period and the
value of food and clothing parcels he had received in prison. He
further claimed EUR 90,000 in respect of non-pecuniary damage.
- The
Government responded that the applicant failed to apply to domestic
courts for compensation for pecuniary and/or non-pecuniary damage. In
any event, he did not produce receipts for food and clothing parcels.
- The
Court notes that the decision to prefer criminal charges against the
applicant was not the subject of its review in the present case.
There was no causal link between the violation found and the alleged
loss of earnings (see Nakhmanovich, cited above, § 102).
Furthermore, the applicant's complaint concerning the conditions of
his detention was declared inadmissible. Accordingly, the Court does
not make an award in respect of pecuniary damage.
- As
regards the claim for non-pecuniary damage, the Court observes that
the applicant, who was not convicted of any criminal offence, spent a
long period of time in custody without relevant and sufficient
grounds. In these circumstances, his suffering and frustration cannot
be compensated for by a finding of a violation. The particular amount
claimed is, however, excessive. Making its assessment on an equitable
basis, the Court awards the applicant EUR 3,000 under this head, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 100 for translation of his observations
into English and EUR 700 in legal fees. He submitted receipts for the
translation services.
- The
Government pointed out that the claim for legal fees was not
supported with any documents.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the supporting
documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 100 for the
translation costs.
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 unanimously the complaint concerning an
alleged violation of the applicant's right to trial within a
reasonable time or release pending trial in the period until 25
September 2002 admissible and the remainder of the application
inadmissible;
- Holds unanimously that there has been a
violation of Article 5 § 3 of the Convention;
- Holds unanimously
(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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR
100 (one hundred euros) in respect of costs and expenses;
(iii) 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 14 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
