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FIRST
SECTION
CASE OF
MELNIKOVA v. RUSSIA
(Application
no. 24552/02)
JUDGMENT
STRASBOURG
21 June
2007
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 Melnikova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 31 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24552/02) 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, Ms Yelena Yuryevna
Melnikova (“the applicant”), on 20 May 2002.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, that her pre-trial detention was
unlawful and unreasonably long.
- By
a decision of 30 June 2005, the Court declared the application partly
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber having decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine), the parties replied in writing to each other's
observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1967 and lives in Penza.
1. First set of criminal proceedings
- On
15 October 1996 the applicant was arrested and detained on suspicion
of murder. On 6 June 1997 the criminal proceedings were terminated
and she was released.
2. Second set of criminal proceedings
- On
17 October 2001 a new set of criminal proceedings was initiated
against the applicant and another person. This time she was suspected
of fraud.
- On
13 December 2001 the applicant was put on a list of persons
wanted by the police.
- On
5 January 2002 the applicant was arrested. The reasons for her arrest
indicated in the arrest warrant included preventing her from
committing further offences, absconding from the investigation and
interfering with the course of justice.
- On
8 January 2002 the investigation authorities charged her, as a
principal offender, with fraud and remanded her in custody pending
trial for the reasons that, having been earlier placed on the wanted
list, she might abscond and interfere with the course of justice.
Later the investigation authorities decided to carry out a
psychiatric examination of the applicant. On 19 February 2002 she was
transferred from the remand prison to a psychiatric hospital. The
preventive measure was changed from detention to an obligation not to
leave the place without permission.
- On
22 March 2002, after the psychiatric examination, the prosecutor
ordered to re-detain the applicant on the ground of the gravity of
charges.
- On
1 April 2002 the investigator applied to the prosecutor for extension
of the applicant's detention on the grounds that she was charged with
having committed grave offences, had no permanent residence in Penza
and “did not take voluntarily any measure to compensate the
damage caused to the victims”. The prosecutor extended the
applicant's detention until 17 April 2002.
- On
8 April 2002 the applicant and the co-accused were informed that the
preliminary investigation was complete. On 10 April 2002 they began
studying the case file.
- On
17 April 2002 the investigator applied to the prosecutor for
extension of the applicant's detention until 5 May 2002 on the ground
of the gravity of charges. The prosecutor granted the extension until
5 May 2002.
- On
29 April 2002 the investigator applied to the prosecutor for
extension of the applicant's detention until 5 June 2002 in
order to let her study the case file. The investigator stated that
she should remain in detention because of the gravity of the charges
and lack of permanent residence in Penza and that, if released, she
might abscond and put pressure on the victims and witnesses.
- On
30 April 2002 the prosecutor extended the applicant's detention until
5 June 2002.
- On
an unspecified date the applicant filed an application for release
pending trial on the grounds, inter alia, of her state of
health and two dependent children.
- On
6 May 2002 the Oktyabrskiy District Court of Penza dismissed the
application. The court held:
“The offence the accused is charged with belongs
to the category of “serious” [offences]. Taking into
account the social danger of the offence, the preventive measure
applied to [Ms] Melnikova is lawful and well-grounded. At present,
there are no reasons to change it.”
- The
applicant appealed.
- On
31 May 2002 she finished studying the case file.
- On
5 June 2002 the case was transmitted to court.
- On
the same date the Penza Regional Court quashed the decision of
6 May 2002 and remitted the case for a fresh examination by
the same court.
- On
an unspecified date the applicant again filed an application for
release pending trial, referring to her two dependent children.
- On
24 June 2002 the Leninskiy District Court of Penza dismissed the
application. Relying on Article 261 of the 1960 Code of Criminal
Procedure, the court held:
“... the application [for release] ... must be
dismissed, because ... the detention ... was lawfully applied to the
applicant by the investigator and authorised by the prosecutor, and
because there was a risk that she might abscond.
It can be seen from the case file that before her arrest
[Ms] Melnikova was on the wanted list, furthermore, she does not have
a permanent residence in Penza. The investigator's order to apply the
preventive measure was lawfully authorised by the prosecutor because,
in accordance with the legislation in force, the preventive measure
may be applied by the court after 1 July 2002. At present there are
no grounds for modification of the preventive measure in respect of
[Ms] Melnikova.”
- On
6 November 2002, in the course of the trial, the applicant sought to
declare certain evidence inadmissible and again filed an application
for release.
- On
the same date the Leninskiy District Court of Penza, relying on
Articles 235 and 271 of the 2001 Code of Criminal Procedure,
dismissed the application on the following grounds:
“ ... [the applicant] is charged with serious
offences, has neither a permanent residence nor a job in Penza, the
preventive measure was applied in accordance with the law, there are
no grounds for its modification and release [of the applicant]...”
- On
an unspecified date the applicant's lawyer requested the court to
remit the case to the investigating authorities for the charges to be
re-formulated. He also asked for the applicant's interim release.
- On
28 November 2002 the Leninskiy District Court of Penza returned the
case to the prosecutor for the bill of indictment to be amended but
refused to release the applicant. The court held in particular:
“... as [Ms] Melnikova is accused of having
committed serious offences ... the court finds no grounds for
modification of the preventive measure...”
- On
6 December 2002 the Leninskiy District Court of Penza extended the
applicant's detention until 10 January 2003 relying on the
gravity of the offence with which the applicant was charged.
- The
applicant appealed against the decisions of 28 November and
6 December 2002 arguing, inter alia, that she had two
dependent children and, therefore, if released she could not abscond.
- On
18 December 2002 the Penza Regional Court dismissed the appeal. The
court held:
“The [trial] court rightfully refused to release
[Ms] Melnikova, because during the preliminary investigation it was
decided to detain her and because less than six months had elapsed
between the transmission of the case to the court and the ruling of
28 November 2002, and also because [she] was charged with
serious offences there were no reasons to apply a different
preventive measure.”
- On
25 December 2002 the prosecutor remitted the case for additional
investigation.
- On
26 December 2002 the investigator accepted the case for additional
investigation. On the same date the Zheleznodorozhniy District Court
of Penza ordered extension of the applicant's detention until
28 February 2003. The applicant appealed.
- On
31 December 2002 the Penza Regional Court dismissed the appeal. The
court held:
“[Ms] Melnikova faces serious charges and has
sought to evade investigation. If released, she may abscond and
obstruct the establishment of the truth. In the present case it is
necessary to correct the defects [of the investigation] discovered in
the course of the trial, to carry out investigative acts for this
purpose, to submit a final bill of indictment and to familiarise the
accused with the file. The judge was right not to find grounds for
the cancellation of detention as a preventive measure in respect of
[Ms] Melnikova.”
- It
appears that on 22 February 2003 the case was referred to the court,
and the applicant remained in custody until the delivery of the
sentence.
- On
23 May 2003 the Leninskiy District Court of Penza convicted
the applicant of fraud and sentenced her conditionally to 5 years'
imprisonment.
II. RELEVANT DOMESTIC LAW
A. Preventive measures
1. Code of Criminal Procedure of 1960 in force until 30
June 2002 (“the old CCrP”)
- The
relevant Articles of the old CCrP provide:
Article 11 (1). Personal inviolability
“No one may be arrested otherwise than on the
basis of a judicial decision or a prosecutor's order. [...]”
Article 89 (1). Application of preventive measures
“When there are sufficient grounds for believing
that an accused person may evade an inquiry, preliminary
investigation or trial or will obstruct the establishment of the
truth in a criminal case or will engage in criminal activity, or in
order to secure the execution of a sentence, the inquirer, the
investigator, the prosecutor or the court may apply one of the
following preventive measures in respect of the accused: a written
undertaking not to leave a specified place, a personal guarantee or a
guarantee by a public organisation, or taking into custody. [...]”
Article 91. Circumstances to be considered when
applying a preventive measure
“When the need for application of a preventive
measure is considered and the type of measure is chosen... the
circumstances to be taken into account shall include... the gravity
of the charges brought and the personality of the suspect or the
accused, occupation, age, health, family status and other
circumstances.”
Article 92. Order or decision to apply a preventive
measure
“A preventive measure shall be applied under an
order made by an inquirer, an investigator, or a prosecutor, or a
reasoned decision given by a court, which shall specify the offence
of which the person is suspected or accused and the grounds for
application of the preventive measure. The person concerned shall be
informed of the order or decision and at the same time the person
shall be provided with explanations concerning the procedure for
appealing against the preventive measure applied.
A copy of the order or the decision on the application
of the preventive measure shall be immediately handed to the person
concerned.”
Article 96. Taking into custody
“Taking into custody as a preventive measure shall
be effected in accordance with the requirements of Article 11 of this
Code in respect of a person charged with criminal offences for which
the law prescribes a penalty in the form of deprivation of liberty
for a period of more than two years. In exceptional cases, this
preventive measure may be applied in criminal matters for which a
penalty in the form of deprivation of liberty for a period of less
than two years is prescribed by law. [...]”
Article 97. Time-limits for pre-trial detention
“A period of detention during the investigation of
offences in criminal cases may not last longer than two months. This
time-limit may be extended by up to three months by a district
or municipal prosecutor ... if it is impossible to complete the
investigation and there are no grounds for altering the preventive
measure. A further extension up to six months from the day of taking
into custody may be effected only in cases of special complexity by a
prosecutor of a subject of the Russian Federation ...
An extension of the time-limit for such detention beyond
six months shall be permissible in exceptional cases and solely in
respect of persons accused of committing grave or very grave criminal
offences. Such an extension shall be effected by a deputy of the
Prosecutor General of the Russian Federation (up to one year) and by
the Prosecutor General of the Russian Federation (up to one year and
a half) [...].”
Article 101. Cancellation or modification of a
preventive measure
“A preventive measure shall be cancelled when it
ceases to be necessary, or else changed into a stricter or a milder
one if the circumstances of the case so require. The cancellation or
modification of a preventive measure shall be effected by a reasoned
order of the person carrying out the inquiry, the investigator or the
prosecutor, or by a reasoned court decision after the case has been
transferred to a court.
The cancellation or modification, by the inquirer or by
the investigator, of a preventive measure chosen on the prosecutor's
instructions shall be permissible only with the prosecutor's
approval.”
Article 222. Issues to be decided when scheduling a
hearing
“When scheduling a hearing a judge shall decide in
respect of each accused:
...5) whether the preventive measure applied to the
accused is subject to modification or cancellation . [...]”
Article 223.1. Scheduling of a hearing
“The judge ... shall deliver a ruling on
scheduling of a hearing...
The decision concerning scheduling of a hearing should
be taken within 14 days after the case has been committed for trial
is the accused is in custody...”
Article 239.1. Time-limits for detention of the
accused during the trial
“The term of detention of a person whose case is
before a court may not exceed six months from the date when the case
is transmitted to the court. In instances where detention as a
preventive measure is applied by a court according to the procedure
provided [in the present Code] the above-mentioned term starts to run
from the moment when the accused is taken into custody.
If there is evidence that the release of the accused
will significantly impede [the examination of the case] the court
may, either of its own motion or upon the prosecutor's request,
extend the term of the [detention] but for no more than three months.
Such decision shall be taken before the expiry of the term of the
detention provided in paragraph 1 of the present Article.
[...]
The provisions of the present Article are not applicable
to persons charged with particularly serious offences.”
Article 261. Procedure of delivery of rulings in a
court hearing
“The court delivers rulings concerning all the
questions examined in the hearing.
Rulings concerning ... application, modification or
cancellation of a preventive measure ... are delivered by the court
in the consultation room and are issued as separate documents, signed
by the whole composition of the court.
[...]
Ruling delivered by the court during the hearing shall
be read out. [...]”
- Under
Article 220-1, complaints about a decision to take the suspect into
custody as a preventive measure should be lodged by the detainee or
his representative with a court. By Article 220-2, judicial review of
the lawfulness and validity of an arrest should be conducted by a
judge in camera at the place of detention within three days of
receipt of the material justifying the arrest.
2. Code of Criminal Procedure of 2001 in force from 1
July 2002 (“the new CCrP”)
- The
relevant Articles of the new CCrP provide
Article 97. Grounds for applying a preventive measure
“1. An inquirer, an investigator, a prosecutor or
a court within their competence may apply to an accused one of the
preventive measures provided for in the present Code when there are
sufficient grounds to believe that the accused:
1) will evade an inquiry, preliminary investigation or
trial;
2) may continue criminal activity;
3)
may threaten a witness or other participants in the criminal
proceedings, destroy evidence or otherwise interfere with the course
of the criminal proceedings.
2. A preventive measure may also be applied in order to
secure enforcement of the sentence.”
Article 99. Circumstances to be considered in
applying a preventive measure
“When the need for application of a preventive
measure is considered and the type of measure is chosen ... the
circumstances to be taken into account shall include the gravity of
the charges brought, the personality of the accused, his age, health,
family status, occupation and other circumstances.”
Article 101. Order or decision to apply a preventive
measure
“1. A preventive measure shall be applied under an
order made by an inquirer, an investigator, a prosecutor or a judge,
or a decision given by a court, which shall specify the offence of
which the person is suspected or accused and the grounds for
application of the preventive measure.
2. A copy of the order or decision on the application of
the preventive measure shall be handed to the person concerned and to
his lawyer or legal representative upon their request.
3. At the same time the procedure for appealing against
application of the preventive measure... shall be explained to the
person concerned.”
Article 108. Taking into custody
“1. Taking into custody as a preventive measure
shall be effected pursuant to a court decision in respect of a person
suspected or accused of committing criminal offences for which the
law prescribes a penalty in the form of deprivation of liberty for a
period of more than two years when application of a milder preventive
measure is impossible. ...the judge's decision shall specify concrete
factual circumstances which constitute the grounds for such decision.
In exceptional cases, this preventive measure may be applied in
criminal matters for which a penalty in the form of deprivation of
liberty for a period of less than two years is prescribed by law,
provided that:
1) the suspect or accused does not have a permanent
residence within the territory of the Russian Federation;
2) his identity has not been established;
3) he has breached the terms of a previously applied
preventive measure; or
4) he has fled from the investigative authorities or
from the court. [...]
3. When it is necessary to apply taking into custody as
a preventive measure a prosecutor, or an investigator, or an inquirer
with the prosecutor's consent, shall file an application with the
court. The application must set out reasons and grounds making it
necessary to take a suspect or an accused into custody and which make
application of another preventive measure impossible. Evidence
supporting the grounds set out in the application shall be attached.
If the application is filed in respect of a [detained] suspect, the
order [on detention] and the indicated evidence shall be submitted to
a judge not later than eight hours before the expiration of the term
of detention.
4. [The application] shall be considered by a judge
alone... with the participation of the suspect or the accused, a
prosecutor and counsel if the latter participates in the criminal
case, either at the place of preliminary investigation or at the
place of detention of the accused within eight hours after the
receipt of the file by the court. ...
7. Having examined the application a judge shall deliver
one of the following decisions:
1) to [take into custody] the suspect or the accused;
2) to refuse the application;
3) to extend the term of detention. Provided the
detention is recognised by the court as lawful and well-grounded, the
term of detention may be extended up to
72 hours from the moment
of delivering a court decision on application of one of the parties
for the submission of additional evidence with regard to the
sufficiency or insufficiency of the grounds for... taking into
custody. The date and time until which the term of detention is
extended shall be indicated in the ruling on extension of the term of
detention. ...
10. If the question of application of taking into
custody as a preventive measure in respect of the defendant arises in
court, the court shall decide on this issue upon the application of a
party or of its own motion, and shall make the requisite orders.
11. A ruling of a judge on application or refusal to
apply taking into custody as a preventive measure shall be subject to
appeal within three days after its delivery. The appeal court shall
decide [on the appeal] within three days after it is lodged. [...]
Article 109. Time-limits for pre-trial detention
“1. A period of detention during the investigation
of criminal offences may not last longer than two months.
2. If it is impossible to complete a preliminary
investigation within two months and if there are no grounds for
modification or cancellation of the preventive measure this
time-limit may be extended up to six months by a judge of a
district or garrison court of the requisite level according to the
procedure provided in Article 108 of the present Code. A further
extension of this term up to 12 months may be effected in respect of
persons accused of committing grave or particularly grave criminal
offences only in cases of special complexity of the criminal case and
provided there are grounds for application of this preventive measure
by a judge of the same court upon application of the investigator
filed with the consent of a prosecutor of a subject of the Russian
Federation or a military prosecutor of equal status.
3. A term of detention beyond 12 months may be extended
to 18 months only in exceptional cases and in respect of persons
accused of committing grave or particularly grave criminal offences
by [a judge] upon application of an investigator filed with the
consent of the Prosecutor General of the Russian Federation or his
deputy.
4. Further extension of the time-limit is not allowed.
[...]
Article 110. Cancellation or modification of a
preventive measure
“1. A preventive measure shall be cancelled when
it ceases to be necessary, or else changed into a stricter or a
milder one if the grounds for its application ... change.
2. The cancellation or modification of a preventive
measure shall be effected by an order of the person carrying out the
inquiry, the investigator, the prosecutor or the judge or by a court
decision.
3. A preventive measure applied at the pre-trial stage
by the prosecutor or by the investigator or the inquirer upon his
written instructions may be cancelled or changed only with the
prosecutor's approval.”
Article 228. Issues to be decided in respect of a
criminal case received by the court
“In respect of a criminal case [received by the
court] the judge has to decide in respect of each accused the
following:
...
3) whether the preventive measure applied is
subject to cancellation or modification [.]
[...]”
Article 255. Decision concerning a preventive measure
“1. In the course of a judicial hearing the court
may apply, change or cancel a preventive measure in respect of the
defendant.
2. If taking into custody is applied to the defendant as
a preventive measure, the term of detention from the date when the
criminal case is submitted to the court and until the sentence is
delivered may not exceed six months except as provided in paragraph 3
of this Article.
3. ...[U]pon expiry of six months from the date when the
criminal case was submitted to it, the [trial] court may extend the
term of detention... only in respect of a criminal case concerning
grave and particularly grave criminal offences and for not more than
three months each time.
4. A court decision on extension of the term of
detention of the defendant may be appealed against. The appeal does
not suspend the criminal proceedings.”
Article 237. Return of the case to
the prosecutor
“1. The judge, upon a party's application or
upon his own initiative, returns the case to the prosecutor for
elimination of the obstacles for its examination by the court, if:
1) the bill of indictment ... was drawn up in
breach of the provisions of the present Code, which exclude the
possibility of rendering a judgment ... on its basis;
2) the accused has not been provided with a
copy of ... the bill of indictment;
3) it is required to draw up a bill of
indictment ... in a case that has been transmitted to the court
together with an order to apply preventive measures of medical
character.
2. In instances provided for in the first
part of the present article the judge obliges the prosecutor to
rectify the breaches within five days.
3. When returning the case to the prosecutor
the judge shall decide on application of the preventive measure to
the accused.”
2. Ruling of the Constitutional Court no. 4-П
of 22 March 2005
- On
22 March 2005 the Constitutional Court of the Russian Federation
adopted Ruling no. 4-П in respect of
a complaint concerning the de facto extension of
pre-trial detention after the transmittal of the case-file from the
prosecution authorities to the trial court. It found that the
challenged provisions of the new CCrP complied with the Constitution
of the Russian Federation. However, their practical interpretation by
the courts may have contradicted their constitutional meaning. In
part 3.2. of the Ruling the Constitutional Court held:
“The second part of Article 22 of the Constitution
of the Russian Federation provides that [...] the detention is
permitted only on the basis of a court order [...]. Consequently, if
the term of detention, as defined in the court order, expires, the
court shall decide on the extension of the detention, otherwise the
accused person should be released [...].
These rules are common for all stages of criminal
proceedings, and also cover the transition from one stage to another.
[...] The transition of the case to another stage does not
automatically put an end to the preventive measure applied at
previous stages.
Therefore, when the case is transmitted by the
prosecution to the trial court, the preventive measure applied at the
pre-trial stage [...] may continue to apply until the expiry of the
term, for which it has been set in the respective court decision
[imposing it] [...]
[Under to Articles 227 and 228 of the Code of Criminal
Procedure] a judge, after having received the criminal case
concerning a detained defendant, should, within
14 days, set a
hearing and establish “whether the preventive measure applied
should be lifted or changed”. This wording implies that the
decision to detain the accused or extend his detention, taken at the
pre-trial stage, may stand after the completion of the pre-trial
investigation and transmittal of the case to the court, only until
the end of the term, for which the preventive measure has been set.
The prosecution, in its turn, while approving the bill
of indictment and transferring the case-file to the court, should
check whether the term of detention has not expired and whether it is
sufficient to allow the judge to take a decision [on further
detention of the accused pending trial]. If by the moment of
transferral of the case-file to the court this term has expired, or
if it appears to be insufficient for allowing the judge to take a
decision [on detention], the prosecutor, pursuant to Articles 108 and
109 of the Code of Criminal Proceedings, [should] request the court
to extend the period of detention.”
B. Forensic medical examination
Article 188. Placement of the accused or the suspect
in a medical institution
“If forensic medical examination or forensic
psychiatric examination requires inpatient supervision, the
investigator places the accused or the suspect in a corresponding
medical institution, which shall be indicated in the order to conduct
the examination.
...
The time spent in the psychiatric medical institution
shall be counted towards the term of detention...”
- Under
Section 40 § 2 of the Law on Psychiatric Aid of 2 July 1992
provides that a patient may be discharged from a psychiatric hospital
upon completion of the examination he was placed in the hospital for.
C. Lodging of applications
- Article
235 governs the procedure for examination of an application to
exclude certain evidence.
- Article
271 provides general rules for lodging and examination of
applications.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 of the Convention that her
pre-trial detention had been unlawful. The Court will examine the
complaint under Article 5 § 1 (c), which reads 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[.]”
1. The parties' submissions
- The
applicant contended that her pre-trial detention had been unlawful
because it had not been authorised by a proper authority in
accordance with the procedure prescribed by law.
- The
Government submitted that the applicant's pre-trial detention had
been authorised by a proper authority. In particular, as regards the
period between 5 June and 6 December 2002, on 5 June 2002 the bill of
indictment and the case file had been transmitted to the Leninskiy
District Court, which had received them on 10 June 2002 and fixed a
hearing for 24 June 2002. On the date of the hearing the
applicant had filed an application for release pending trial, which
had been dismissed by the court. On 6 and 28 November 2002 the
Leninskiy District Court had refused two other applications for
release pending trial made by the applicant. On 6 December 2002
the same court had extended the applicant's detention until 10
January 2003. Her appeal against both rulings had been dismissed on
18 December 2002 by the Penza Regional Court. As regards the period
between 28 February and 23 May 2003 the Government submitted that the
applicant had been detained because her case had been pending before
the court and the issues concerning her detention had been decided in
accordance with the legislation on criminal procedure.
- The
Government further submitted that the decisions of 24 June, 6 and
28 November 2002 dismissing the applicant's applications for release
had legal effect equivalent to a decision to extend the term of her
detention. Therefore, they constituted sufficient legal basis for the
applicant's pre-trial detention. Furthermore, as regards the decision
of 28 November 2002, when the court returned the case to the
prosecutor for the bill of indictment to be amended, pursuant to
Article 237 of the new CCrP the court had to rule on the
preventive measure to be applied to the applicant irrespective of her
application for release. The Government concluded that the
applicant's pre-trial detention had been compatible with Article 5 §
1.
2. The Court's assessment
(a) General principles
- 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.
- The
Court must moreover ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty be satisfied.
It is therefore essential that the conditions for deprivation of
liberty under domestic law be clearly defined and that the law itself
be foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see Ječius v. Lithuania, no.
34578/97, § 56, ECHR 2000 IX; Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) Pre-trial detention from 5 January to
5 June 2002
- The
Court notes that the applicant was arrested on 5 January 2002. The
decision to remand her in custody pending trial was taken on
8 January 2002. On 19 February 2002 the applicant was
placed in a psychiatric hospital under an obligation not to leave the
place without permission. She was re-detained on 22 March 2002 and
her subsequent detention was authorised by the prosecutor's decisions
of 22 March,
1, 17 and 30 April 2002. By the latest decision the
term of her pre-trial detention was extended to 5 June 2002. It
follows that the applicant's detention was duly authorised throughout
this period.
- In
these circumstances, the Court finds that there has been no violation
of Article 5 § 1 of the Convention on account of the
applicant's pre-trial detention from 5 January to 5 June 2002.
(c) Pre-trial detention from 5 to 24 June
2002
- The
Court notes that by the decision of 30 April 2002 the prosecutor
extended the term of the applicant's pre-trial detention until 5 June
2002. On that date the case was transmitted to court. However, no
decision concerning the preventive measure to be applied to the
applicant was taken. On 24 June 2002 the Leninskiy District Court of
Penza dismissed an application for release filed by the applicant.
- The
Government maintained that from 5 to 24 June 2002 the applicant was
detained on the basis of the fact that the criminal case against her
had been referred to the trial court, which complied with domestic
rules of criminal procedure.
- The Court
observes that it has already found a violation of Article 5 §
1 in a number of cases concerning the practice of holding defendants
in custody solely on the basis of the fact that a bill of indictment
has been lodged with the court competent to try the case (see
Khudoyorov v. Russia, no. 6847/02, §§ 144-151,
8 November 2005; Baranowski v. Poland, cited above, §§
53-58 and Ječius v. Lithuania, cited above, §§
60-64). It held that the practice of keeping defendants in detention
without a specific legal basis or clear rules governing their
situation – with the result that they may be deprived of their
liberty for an unlimited period without judicial authorisation –
is incompatible with the principles of legal certainty and protection
from arbitrariness, which are common threads throughout the
Convention and the rule of law (ibid.). The Court
sees no reason to reach a different conclusion in the present case.
- Therefore,
there has been a violation of with Article 5 § 1 of the
Convention on account of the applicant's detention from 5 to 24 June
2002.
(d) Pre-trial detention from 24 June to 28
November 2002
- The
Court notes that, during the period from 24 June to 28 November 2002,
the trial court ruled on two applications for release lodged by the
applicant. In the ruling of 24 June 2002 the Leninskiy
District Court dismissed the applicant's application for release on
the grounds that detention as a preventive measure had been lawfully
applied to her by the investigator and authorised by the prosecutor
and there had been a risk of her absconding. In the ruling of
6 November 2002 the same court dismissed another application for
release on the grounds that the applicant was charged with serious
offences and had neither a permanent residence nor a job in Penza and
that the preventive measure had been applied in accordance with the
law and there were no grounds for its modification.
- The
Government argued that the decisions of 24 June and 6 November
2002 had a legal effect equivalent to that of a decision on extension
of the term of detention and, therefore, they constituted sufficient
legal basis for the applicant's pre-trial detention.
- The
Court notes, however, that the latest extension of the applicant's
detention was authorised by the prosecutor on 30 April 2002 until
5 June 2002. On the latter date the case was transmitted to
court and no decision concerning the applicant's detention was taken
by the trial court. The Court further notes that under Articles 222
and 223.1 of the old CCrP, which remained in force until 30 June
2002, when scheduling a hearing, the judge had to decide on the
preventive measure to be applied to the applicant within 14 days
after the case has been committed for trial. Article 228 of the new
CCrP provides that the judge should decide on the preventive measure
when a criminal case is received by the court.
- The
Court observes that the rulings of 24 June and 6 November 2002
were delivered under neither Articles 222 and 223.1 of the old CCrP,
nor under Article 228 of the new CCrP. In the ruling of 24 June 2002
the court referred to Article 261 of the old CCrP, and in the ruling
of 6 November 2002 to Articles 235 and 271 of the new CCrP.
Furthermore, both rulings clearly referred to the prosecutor's
decision on extension of the applicant's detention, although it had
expired on the date when the case had been transmitted for trial and
the applicant had been in detention for almost 20 days without any
authorisation whatsoever.
- The
Court considers that the applications for release filed by the
applicant did not exempt the domestic authorities from the obligation
to authorise the applicant's detention “in accordance with a
procedure prescribed by law” by issuing a formal detention
order, as provided by Article 5 § 1. Finding otherwise would
place on the applicant, rather than the authorities, the burden to
ensure a lawful basis for her continued detention.
- The
Court therefore finds that there has been a violation of Article 5 §
1 of the Convention on account of the applicant's detention from 24
June to 28 November 2002.
(e) Pre-trial detention from 28 November
to 6 December 2002
- The
Court notes that on 28 November 2002 the Leninskiy District Court
returned the case to the prosecutor for the bill of indictment to be
amended. At the same time the court dismissed the applicant's
application for release and ordered her to remain in detention since
she was accused of having committed serious offences and there were
no grounds to change the preventive measure. The Court further notes
that under Article 237 of the new CCrP when a court returns a
case to a prosecutor it has to decide on a preventive measure to be
applied to the applicant. Therefore, the decision of 28 November 2002
was taken in accordance with the above provision of the new CCrP. The
Court observes that a particular term during which the applicant
should remain in custody was not indicated in the decision. However,
Article 255 of the new CCrP provides a six-month time-limit for
detention after the case has been committed for trial which, when a
particular term is not indicated in the court order, applies
automatically. Therefore, the Court finds that the applicant's
ensuing detention was duly authorised.
- Accordingly,
there has been no violation of Article 5 § 1 of the Convention
on account of the applicant's detention from 28 November to
6 December 2002.
(f) Pre-trial detention from 6 December
2002 to 28 February 2003
- The
Court notes that on 6 December 2002 the Leninskiy District Court
extended the applicant's pre-trial detention until 10 January 2003.
On 26 December 2002 the same court subsequently extended the
detention until 28 February 2003. On 22 February 2002 the applicant's
case was again transmitted for trial. The trial court did not rule on
the preventive measure to be applied to the applicant. The Court
observes that in the ruling no. 4-П
of 22 March 2005 the Constitutional Court held that “the
transition of the case to another stage does not automatically put an
end to the preventive measure applied at previous stages”.
Accordingly, the extension of the applicant's detention until
28 February 2003 remained valid irrespective of the fact
that her case was transmitted for trial. It follows that the
applicant's detention was duly authorised throughout this term.
- In
these circumstances, the Court finds that there has been no violation
of Article 5 § 1 of the Convention on account of the
applicant's pre-trial detention from 6 December 2002 to 28
February 2003.
(g) Pre-trial detention from 28 February
to 23 May 2003
- The
Court notes that on 22 February 2002 the applicant's case was again
committed for trial. Although the authorised term of her detention
expired on 28 February 2003, there is no evidence that a separate
decision concerning the applicant's detention was taken.
Nevertheless, she remained in custody. In the absence of
authorisation of the subsequent term of the applicant's detention and
having regard to its finding in § 56 above, the Court concludes
that the applicant's detention was not compatible with the
Convention's requirements.
- Accordingly,
there has been a violation of with Article 5 § 1 (c) of the
Convention on account of the applicant's detention from
28 February 2003 to 23 May 2003.
3. Summary of the findings
- The
Court has found no violation of Article 5 § 1 of the Convention
on account of the applicant's pre-trial detention from 5 January to
5 June 2002, from 28 November to 6 December 2002 and from
6 December 2002 to 28 February 2003.
- The
Court has found a violation of Article 5 § 1 of the Convention
on account of the applicant's pre-trial detention from 5 to 24 June
2002, from 24 June to 28 November 2002 and from 28 February to 23
May 2003.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 of the Convention that there had
been no reasonable grounds for her to be held in remand prison for
such a lengthy period.
The
Court will examine the complaint under Article 5 § 3, which
reads, in so far as relevant, 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. Release may be conditioned by guarantees to appear for trial.”
1. The parties' submissions
- The
applicant averred that the overall term of her pre-trial detention,
that is almost 1 year and 5 months, had been excessive and
unreasonable. Furthermore, she contended that the reasons for her
continued detention had not been sufficiently specified. She had had
a permanent place of residence, a job, and there had been no evidence
of her intention to abscond and hinder the investigation. The
reference to her having sought to evade the investigation in 2001 had
not corresponded to the facts of the case because she had not even
been notified about the institution of the criminal proceedings
against her and had become aware of having been placed on a wanted
list only when studying the case file. Furthermore, when remanding
her in custody the domestic authorities paid no regard either to her
state of health or to the fact that she had had two little children
that had been left with no means of subsistence. The applicant also
submitted that during her placement in the psychiatric hospital she
had been de facto deprived of her liberty and therefore that
period should be counted towards her pre-trial detention.
- The
Government noted, referring to Wemhoff v. Germany, judgment of
27 June 1968, Series A no. 7, p. 24, § 10, that the
reasonableness of continued detention must be assessed in each case
according to its special features. They further noted that according
to the Court's case-law the principal grounds for detention besides
reasonable suspicion are the danger of absconding, the risk of
collusion and the need to prevent the accused committing further
offences (see W. v. Switzerland, judgment of 26 January 1993,
Series A no. 254 A, p. 14, § 31). The Government
submitted that when imposing detention as a preventive measure in
respect of the applicant the investigation authorities and the courts
had taken into consideration the fact that in 2001 she had sought to
evade the investigation, had had no place of residence and,
therefore, being free could evade the trial. Furthermore, she had
been accused of having committed a grave offence. In the Government's
view the domestic authorities and courts had sufficient grounds to
consider the applicant's detention necessary to prevent her from
committing further offences and evading justice.
- The
Government further submitted that under the Law on Psychiatric Aid a
person placed for an examination can not freely leave the hospital.
However, placement in a hospital “cannot be considered as
deprivation of liberty since it is not a type of punishment”.
They also submitted that, at the same time, under Article 188 of the
old CCrP in force at the material time “the time of stay in a
mental medical institution included into the term of holding in
custody and in this connection the time of [the applicant's] stay in
psychiatric hospital belongs to the aggregate [length] of preliminary
detention”.
2. The Court's assessment
(a) General principles
- Under
the Court's case-law, 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, e.g., the Yagci and Sargin v. Turkey
judgment of 8 June 1995, Series A
no. 319-A, § 52).
Refusing bail should be justified either by the risk that the accused
will fail to appear for trial, will interfere with the course of
justice, or is likely to commit further offences. The severity of the
potential sentence, though important, is not an independent ground
and cannot itself justify the refusal of bail (Yagci and Sargin v.
Turkey, cited above, § 52).
- Arguments
for and against release must not be “general and abstract”
(see Clooth v. Belgium, judgment of 12 December 1991,
Series A no. 225, § 44). Where the law provides for a
presumption in respect of factors relevant to the grounds for
continued detention, the existence of the concrete facts outweighing
the rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, no. 33977/96,
§ 84 in fine, 26 July 2001).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but 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
(Labita v. Italy [GC], no. 26772/95, § 153, ECHR
2000 IV.
(b) Application of the principles to the
present case
- The
Court notes that the applicant was arrested on 5 January 2002 and
released on 23 May 2003. Between 19 February and 22 March 2002 the
applicant stayed in a psychiatric hospital where she was placed for
an examination under an obligation not to leave the place without
permission. Under Article 188 of the old CCrP the time spent by a
suspect or an accused in a psychiatric institution counted towards
the overall term of pre-trial detention. The Court sees no reason to
deviate from domestic rules in this respect. Accordingly, the total
duration of the applicant's detention amounted to 1 year, 4 months
and 18 days.
- The
Court further notes that in a number of decisions to remand the
applicant in custody domestic authorities relied on the lack of a
permanent residence in Penza and her being previously placed on a
wanted list. In her observations the applicant contended that she had
had a permanent place of residence, had never absconded from the
investigation and had learnt about having been placed on the wanted
list only when studying the case file. The Court observes that it is
not sufficiently clear whether referring to “the lack of
permanent residence in Penza” the domestic authorities meant
that the applicant, who had two dependent children and was
corresponding with the Court using a residential address in Penza,
had nowhere to live in Penza or that she did not have a permanent
residential registration in Penza. However, it does not find it
necessary to decide on these issues and shall assume, for the
purposes of the following analysis, that the applicant indeed
absconded from the investigation at the initial stages and had no
fixed residence in Penza.
- The
Court accepts that the applicant's arrest on 5 January 2002 may have
been warranted by a reasonable suspicion that she had committed fraud
and the fact that she had been placed on a wanted list. The decision
to remand her in custody of 8 January 2002 was based on her placement
on the wanted list and the risk of absconding and interfering with
the course of justice. It accepts that these grounds were relevant
and sufficient at that stage of the applicant's pre-trial detention.
- On
19 February 2002 the applicant was placed in a psychiatric hospital
for examination and re-detained upon her release on 22 March 2002.
The decision to re-detain the applicant was based solely on the
ground of the gravity of the charges. Furthermore, in the decisions
to extend the applicant's detention or to dismiss her applications
for release of 17 April, 6 May, 28 November and 6 December 2002, the
prosecution authorities and courts also relied only on the gravity of
the charges as the ground for the applicant's continued detention.
The Court has repeatedly held that the gravity of the charges cannot
by itself serve to justify long periods of detention on remand (see
Panchenko v. Russia, no. 45100/98,
§ 102, 8 February
2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; Ilijkov v. Bulgaria, no. 33977/96,
§ 81, 26 July 2001). Accordingly, the reasons for the
applicant's detention adduced by the domestic authorities in the
above decisions were not sufficient.
- The
Court notes that, in the decisions to extend the applicant's
detention or to dismiss her applications of release of 1 and 30
April, 24 June, 6 November and 26 December 2002, the prosecution
authorities and courts relied not only on the gravity of the charges,
but also on the absence of a permanent residence in Penza or previous
placement on the wanted list. While the mere absence of a fixed
residence does not give rise to a danger of flight (Sulaoja v.
Estonia, no. 55939/00, § 64, 15 February
2005), this element, combined with the placement on the wanted list,
could support the existence of a risk of absconding at the initial
stages of the investigation. However, the danger of flight
necessarily decreases with the passage of time spent in detention
(Neumeister v. Austria, judgment of
27 June 1968, Series A
no. 8, p. 39, § 10). The Court considers that, although
these grounds might be relevant and sufficient at initial stages of
investigation, the mere reiteration thereof at later stages of
investigation without scrupulous examination of evolving
circumstances could not be sufficient to justify the applicant's
continued detention (Smirnova v. Russia, nos. 46133/99
and 48183/99, §§ 69-71, ECHR 2003 IX (extracts)).
In particular, in their decisions to remand the applicant, the
domestic authorities did not address specific grounds for release put
forward in the applicant's applications for release, such as her
state of health and two dependant children, and failed to consider
any alternative preventive measures.
- Accordingly,
even though the applicant's detention might have been warranted at
the initial stages of the investigation, the Court finds that the
domestic authorities failed to adduce relevant and sufficient reasons
to justify its prolongation up to 1 year, 4 months and 18 days. In
such circumstances it is not necessary to examine whether the
authorities displayed “special diligence” required in the
handling of criminal proceedings against remand prisoners.
- Therefore,
there has been a violation of Article 5 § 3 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.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) for compensation of
non-pecuniary damage caused by unlawful and unreasonably long
pre-trial detention.
- In
the Government's view, the finding of a violation would constitute
sufficient compensation in the present case.
- The
Court notes that the applicant's detention was unlawful for several
months and, when it was “lawful”, it was not based on
sufficient grounds. The Court considers that, as a consequence, the
applicant must have suffered frustration, helplessness and a feeling
of injustice that cannot be sufficiently compensated for by the
finding of a violation. Making its assessment on an equitable basis,
it awards the applicant EUR 5,000 in respect of non pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not make any claim in respect of the costs and expenses
incurred before the domestic courts and before the Court.
- 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
- Holds that there has been a violation of
Article 5 § 1 of the Convention on account of the
applicant's pre-trial detention from 5 to 24 June 2002, from 24 June
to 28 November 2002 and from 28 February to 23 May 2003;
- Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant's
pre-trial detention from 5 January to 5 June 2002, from 28
November to 6 December 2002 and from 6 December 2002 to 28
February 2003;
- 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 the national currency of the respondent State 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 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 21 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
