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FIRST
SECTION
CASE OF AVDEYEV AND VERYAYEV v. RUSSIA
(Application
no. 2737/04)
JUDGMENT
STRASBOURG
9 July
2009
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Avdeyev and
Veryayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 18 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2737/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Russian nationals, Mr Aleksandr
Vladimirovich Avdeyev and Mr Yevgeniy Nikolayevich Veryayev (“the
applicants”), on 30 November 2003.
- The
applicants, who had been granted legal aid, were represented by Ms E.
Polyutskaya and Ms N. Vedmenskaya, lawyers practising in Moscow. The
Russian Government (“the Government”) were represented Mr
P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights.
- The
applicants alleged, in particular, that they had been detained
unlawfully for a long time without any valid reasons.
- On
14 November 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- 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
applicants were born in 1975 and 1971, respectively, and live in the
town of Sasovo in the Ryazan Region.
A. Institution of criminal proceedings and conviction
on 9 April 2003
- On
12 July 2001 the brother of the first applicant had a fist fight with
Mr K. Several persons, including Mr L., witnessed the fight and were
brought to the Sasovo District police station for questioning. The
applicants, investigators in the Sasovo District Police Department at
the material time, invited Mr L. into an office and urged him to
change his statements about the fight. In response to Mr L.'s
refusal, the applicants, who were intoxicated, beat him up. The first
applicant dragged Mr L. outdoors, forced him into a car, drove him to
a cemetery and left him there.
- Criminal
proceedings were instituted against the applicants upon Mr L.'s
complaints. They were charged with aggravated abuse of position. The
applicants were not remanded in custody as they had given written
undertakings not to leave the town.
- On
9 April 2003 the Sasovo District Court of the Ryazan Region found the
applicants guilty as charged and sentenced the first applicant to
three years and six months' imprisonment and the second applicant to
three years' imprisonment. The applicants were taken into custody in
the courtroom.
B. Quashing of the conviction on 5 June 2003. Detention
on remand from 5 June to 10 July 2003
- On
5 June 2003 the Ryazan Regional Court, acting on appeal, quashed the
judgment of 9 April 2003, remitted the case for a fresh examination
and ordered, without providing any reasoning or indicating any legal
grounds, that the applicants should remain in custody. The decision
of 5 June 2003 was not amenable to appeal.
C. Detention from 10 July to 8 October 2003
- On
10 July 2003 the Sasovo District Court fixed the first trial hearing
for 18 July 2003 and ordered that the measure of restraint applied to
the applicants should “remain unchanged”. No reasons for
the extension were given. At the same time the District Court
indicated that the decision could be appealed against to the Ryazan
Regional Court within ten days. The applicants did not appeal.
- The
applicants' lawyers asked the District Court to release the
applicants on their own recognisance. Both requests were dismissed,
on 11 and 14 July 2003, respectively, because the District Court
had already examined the detention matter on 10 July 2003. The
lawyers did not appeal against the decisions.
- On
25 July 2003 the Sasovo District Court examined the applicants'
requests for release and dismissed them by two separate identically
worded decisions. In particular, the District Court held that the
applicants were charged with serious criminal offences and could
influence witnesses. The decisions were amenable to appeal, however,
no appeal followed.
D. Detention from 8 October 2003 to 9 January 2004
(detention order of 8 October 2003)
- On
8 October 2003 the District Court extended the applicants' detention
on remand until 9 January 2004. It held that the applicants had
committed a serous criminal offence and, if released, might obstruct
justice. The District Court also mentioned that it had ordered an
expert examination which had not yet been completed.
- The
applicants appealed, arguing that their conviction had been quashed
and there were no further grounds to keep them in custody. They noted
that they had children, had permanent places of residence and did not
have any criminal record.
- On
30 October 2003 the Ryazan Regional Court upheld the decision of
8 October 2003, noting that the detention had been lawfully
extended with reference to the seriousness of the charge against the
applicants.
E. Detention from 9 January to 12 February 2004
(detention order of 25 December 2003)
- On
25 December 2003 the Sasovo District Court, by two separate similarly
worded decisions, extended the applicants' detention for an
additional three months, that is, until 9 April 2004. The District
Court listed the following grounds for the extension: the gravity of
the charge against the applicants, the fact that not all witnesses
had yet been heard in open court, the likelihood that the applicants
might try to influence the victim and witnesses and to prevent the
establishment of the truth in the case.
- The
applicants' lawyers appealed, relying on Article 5 of the Convention
and arguing that, when extending the applicants' detention, the
District Court had not taken into consideration their personal
circumstances: that Sasovo was their permanent place of residence,
that they needed to take care of small children, etc. They further
submitted that there was no evidence of the alleged likelihood that
the applicants would obstruct the course of justice. They had never
attempted to influence the victim or witnesses and had never tried to
interfere with the course of the investigation or judicial
proceedings.
- On
20 January 2004 the Ryazan Regional Court upheld the decisions of 25
December 2003, endorsing the reasons given by the District Court.
F. Conviction on 12 February 2004
- On
12 February 2004 the Sasovo District Court found the applicants
guilty of aggravated abuse of position and sentenced them to three
years and five months' and three years' imprisonment, respectively.
- On
1 April 2004 the Ryazan Regional Court upheld the conviction.
II. RELEVANT DOMESTIC LAW
- Until
1 July 2002 matters of criminal law 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”).
A. Preventive measures
- “Preventive measures” or “measures
of restraint” include an undertaking not to leave a town or
region, a personal guarantee, bail and remand in custody (Article 98
of the new CCrP).
B. Authorities ordering detention
- The Russian Constitution of 12 December 1993 provides
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
The
new CCrP requires a judicial decision by a district or town court on
a reasoned request by a prosecutor, supported by appropriate evidence
(Article 108 §§ 1, 3-6).
C. Grounds for remand in custody
- When
deciding whether to remand an accused in custody, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that he or she would abscond during the
investigation or trial or obstruct the establishment of the truth or
reoffend (Article 97 § 1 of the new CCrP). It must also take
into account the gravity of the charge, information on the accused's
character, his or her profession, age, state of health, family status
and other circumstances (Article 99 of the new CCrP). A defendant
should not be remanded in custody if a less severe preventive measure
is available.
D. Time-limits for detention
1. Two types of remand in custody
- The
Code makes a distinction between two types of remand in custody: the
first being “during investigation”, that is, while a
competent agency – the police or a prosecutor's office –
is investigating the case, and the second being “before the
court” (or “during trial proceedings”), at the
judicial stage. Although there is no difference in practice between
them (the detainee is held in the same detention facility), the
calculation of the time-limits is different.
2. Time-limits for detention “during
investigation”
- After arrest the suspect is placed in custody “during
investigation”. The maximum permitted period of detention
“during investigation” is two months but this can be
extended for up to eighteen months in “exceptional
circumstances”. Extensions are to be authorised by judicial
decisions, taken by courts at ascending levels. No extension of
detention “during investigation” beyond eighteen months
is possible (Article 109 § 4 of the new CCrP).
- The period of detention “during investigation”
is calculated up to the day when the prosecutor sends the case to the
trial court (Article 109 § 9 of the new CCrP).
- Access to the materials in the file is to be granted
no later than one month before the expiry of the authorised detention
period (Article 109 § 5 of the new CCrP). If the defendant needs
more time to study the case file, a judge, on a request by a
prosecutor, may grant an extension of the detention until such time
as the file has been read in full and the case sent for trial
(Article 109 § 8 (1) of the new CCrP).
3. Time-limits for detention “before the
court”/”during judicial proceedings”
- From
the date the prosecutor refers the case to the trial court, the
defendant's detention is classified as “before the court”
(or “during judicial proceedings”).
- The new CCrP provides that the term of detention
“during judicial proceedings” is calculated from the date
the court received the file up to the date on which the judgment is
given. The period of detention “during judicial proceedings”
may not normally exceed six months, but if the case concerns serious
or particularly serious criminal offences, the trial court may
approve one or more extensions of no longer than three months each
(Article 255 §§ 2 and 3).
E. Time-limits for trial proceedings
- The new CCrP empowers the judge, within fourteen days
of receipt of the case file, (1) to refer the case to a competent
court; (2) to fix a date for a preliminary hearing; or (3) to fix a
trial date (Article 227). In the latter case, the trial proceedings
must begin no later than fourteen days after the judge has fixed the
trial date (Article 233 § 1 of the new CCrP). There are no
restrictions on fixing the date of a preliminary hearing.
- The
duration of the entire trial proceedings is not limited in time.
- The new CCrP provides that the appeal court must start
the examination of the appeal no later than one month after it is
lodged (Article 374).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE
CONVENTION
- The
applicants complained under Article 5 § 1 (c) that their
detention from 5 June 2003 to 9 January 2004 had been unlawful. The
relevant parts of Article 5 provide:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
A. Submissions by the parties
- The
Government argued that the applicants' detention had been lawful,
complying with the requirements of Article 5 § 1 (c) of the
Convention. They further submitted that the applicants did not appeal
against the detention orders issued between 10 July 2003 and 9
January 2004 and that their complaint should, therefore, be dismissed
for failure to exhaust domestic remedies.
- The
applicants submitted that their detention had lacked any legal basis.
The District Court's detention orders either did not have any
reasoning at all or did not give valid reasons.
B. The Court's assessment
1. Admissibility
- The
Court observes at the outset that the applicants' complaint only
refers to a particular period of their detention, that is from 5 June
2003, when the Regional Court quashed the conviction of 9 April 2003
and authorised their continued detention, to 9 January 2004. The
Court further notes the Government's submission, which was not
contested by the applicants, that the latter had failed to appeal
against the orders extending their detention between 10 July and 8
October 2003.
- In
this connection, the Court points out that the applicants were
represented, from the pre-trial stage of the proceedings, by two
counsel of their own choosing. No explanation has been offered for
their failure to lodge, or advise the applicants to lodge, a judicial
appeal against the detention orders. The Court therefore considers
that the part of the applicants' complaints concerning the detention
orders issued between 10 July and 8 October 2003 must be
rejected for non-exhaustion of domestic remedies pursuant to Article
35 § 1 of the Convention (see, mutatis mutandis, Belov
v. Russia, no. 22053/02, §74, 3 July 2008 and Matyush
v. Russia, no. 14850/03, §
63, 9 December 2008).
- The
Court further notes that the complaint concerning the unlawfulness of
the applicants' detention from 5 June to 10 July 2003 and from 8
October 2003 to 9 January 2004 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.
2. Merits
(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, and Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) Application of the general principles
to the present case
i. The applicants' detention from 5 June
to 10 July 2003
- The
Court notes that on 5 June 2003 the Ryazan Regional Court quashed the
judgment of 9 April 2003, by which the applicants had been convicted,
and ordered that they should remain in custody. On 10 July 2003 the
Sasovo District Court again extended the applicants' detention.
- The
Court observes that on 5 June 2003 the Ryazan Regional Court gave no
reasons for its decision to remand the applicants in custody. It also
did not set a time-limit for the continued detention or for a
periodic review of the preventive measure. Leaving aside the
concurrent developments in the applicants' case, it transpires that
for more than a month the applicants remained in a state of
uncertainty as to the grounds for their detention from 5 June to
10 July 2003, when the District Court re-examined the detention
matter.
- The
Court has already found violations of Article 5 § 1
(c) of the Convention in a number of cases against Russia concerning
a similar set of facts (see, for example, Solovyev v. Russia,
no. 2708/02, §§ 95-100, 24 May 2007; Shukhardin v.
Russia, no. 65734/01, §§ 65-70, 28 June 2007; and Belov
v. Russia, cited above, §§ 8-83, 3 July 2008). In
particular, the Court has held that the absence of any grounds given
by judicial authorities in their decisions authorising detention for
a prolonged period of time is incompatible with the principle of
protection from arbitrariness enshrined in Article 5 § 1 (see
also Nakhmanovich v. Russia, no. 55669/00, §§
70-71, 2 March 2006, and Stašaitis v. Lithuania,
no. 47679/99, § 67, 21 March 2002). Permitting a
prisoner to languish in detention without a judicial decision based
on concrete grounds and without setting a specific time-limit would
be tantamount to overriding Article 5, a provision which makes
detention an exceptional departure from the right to liberty and one
that is only permissible in exhaustively enumerated and strictly
defined cases (see Khudoyorov v. Russia, no. 6847/02, §
142, ECHR 2005-X).
- The Court sees no reason to reach a different
conclusion in the present case. It considers that the decision of 5
June 2003 did not comply with the requirements of clarity,
foreseeability and protection from arbitrariness, which together
constitute the essential elements of the “lawfulness” of
detention within the meaning of Article 5 § 1.
- The
Court therefore considers that there has been a violation of
Article 5 § 1 (c) of the Convention on account of the
applicants' detention from 5 June to 10 July 2003.
ii. The applicants' detention from 8
October 2003 to 9 January 2004
- The
Court observes that the applicants' detention during the period from
8 October 2003 to 9 January 2004 was authorised by the District Court
on the grounds that the charges against them were serious, that they
were liable to obstruct the course of justice and that it was
necessary to complete the expert examination.
- The Court reiterates that the trial court's decision
to maintain a custodial measure would not breach Article 5 § 1
provided that the trial court had acted within its jurisdiction, had
power to make an appropriate order, and had given reasons for its
decision to maintain the custodial measure, for which it had also set
a time-limit (see Khudoyorov, cited above, §§
152-153; Korchuganova v. Russia, no. 75039/01, § 62, 8
June 2006; and Pshevecherskiy v. Russia, no. 28957/02, §§
41-46, 24 May 2007).
- The
trial court acted within its jurisdiction in issuing the decision of
8 October 2003 and there is nothing to suggest that it was invalid or
unlawful under domestic law in so far as it authorised the
applicants' detention for the subsequent period. Nor has it been
claimed that that decision was otherwise incompatible with the
requirements of Article 5 § 1, the question of the sufficiency
and relevance of the grounds relied on being analysed below in the
context of compliance with Article 5 § 3 of the Convention.
- Accordingly,
the Court finds that there has been no violation of Article 5 §
1 (c) of the Convention in respect of the detention order issued on 8
October 2003.
3. Summary of the findings
- The
Court has found a violation of Article 5 § 1 (c) of the
Convention on account of the applicants' detention from 5 June to 10
July 2003.
- The
Court has found no violation of Article 5 § 1 (c) of the
Convention on account of the applicants' detention between 8 October
2003 and 9 January 2004.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicants complained that their detention had been excessively long.
The Court considers that this complaint falls to be examined under
Article 5 § 3 of the Convention, which provides:
“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...”
A. Submissions by the parties
- The
Government submitted that the length of the applicants' detention had
not been excessive. It was necessitated by the seriousness of the
charge against the applicants and the likelihood that they would try
to influence witnesses. In the Government's opinion, there were “no
grounds for the applicants' release”. The Government stressed
that the length of the applicants' detention had been in direct
relation to the general length of the criminal proceedings against
them, which had had an objective justification: the complexity of the
case, the necessity to perform expert examinations, the lawyer's
illness and his inability to take part in the hearings, etc.
- The
applicants maintained their complaints, arguing that the domestic
courts' conclusions about their potential to obstruct the course of
justice had been groundless. They supported that assertion with
reference to the fact that for almost two years, from July 2001 to 9
April 2003, during which the pre-trial investigation and trial
proceedings against them had been pending, they had not been in
custody. However, they did not attempt to abscond, reoffend or
pervert the course of justice.
B. The Court's assessment
1. Admissibility
-
The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) General principles
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty
(see, among other authorities, W. v. Switzerland, 26 January
1993, Series A no. 254 A, and Kudła v. Poland [GC],
no. 30210/96, § 110, ECHR 2000 XI).
- The
presumption is in favour of release. As the Court has consistently
held, the second limb of Article 5 § 3 does not give judicial
authorities a choice between either bringing an accused to trial
within a reasonable time or granting him provisional release pending
trial. Until his conviction, the accused must be presumed innocent,
and the purpose of the provision under consideration is essentially
to require him to be released provisionally once his continuing
detention ceases to be reasonable (see Vlasov v. Russia, no.
78146/01, § 104, 12 June 2008, with further references).
- The
Court further observes that it falls in the first place to the
national judicial authorities to ensure that, in a given case, the
pre-trial detention of an accused person does not exceed a reasonable
length of time. To this end they must examine all the facts arguing
for or against the existence of a genuine requirement of public
interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty, and set them out in their decisions dismissing
the applications for release. It is essentially on the basis of the
reasons given in these decisions and of the true facts mentioned 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
of the Convention (see Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000 IV).
- The
arguments for and against release must not be “general and
abstract” (see Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides
for a presumption in respect of factors relevant to the grounds for
continued detention, the existence of the specific 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 continue
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
(see Labita, cited above, § 153).
(b) Application of the general principles
to the present case
- The
Court notes that from 5 June 2003, when the Ryazan Regional Court
authorised the applicants' detention on remand, to 12 February 2004,
the date of their conviction, the authorities extended the
applicants' detention a number of times. In their decisions they
either did not provide any reasons for the extensions or they relied
on the gravity of the charges as the main factor and on the
applicants' potential to obstruct the course of justice.
- As
regards the authorities' reliance on the gravity of the charges as
the decisive element, the Court has repeatedly held that the gravity
of the charges cannot by itself serve to justify long periods of
detention (see Panchenko v. Russia, no. 45100/98, § 102,
8 February 2005; Goral v. Poland, no. 38654/97, §
68, 30 October 2003; and Ilijkov, cited above, § 81).
This is particularly true in the Russian legal system, where the
characterisation in law of the facts – and thus the sentence
faced by the applicants – is determined by the prosecution
without judicial review of whether the evidence obtained supports a
reasonable suspicion that the applicants have committed the alleged
offence (see Khudoyorov, cited above, § 180).
- The
remaining ground for the applicants' continued detention was the
authorities' findings that the applicants might influence witnesses
and thus obstruct the course of justice. The Court reiterates that it
is incumbent on the domestic authorities to establish the existence
of concrete facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
a provision which makes detention an exceptional departure from the
right to liberty and one that is only permissible in exhaustively
enumerated and strictly defined cases (see Rokhlina v. Russia,
no. 54071/00, § 67, 7 April 2005). It remains to be
ascertained whether the domestic authorities established and
convincingly demonstrated the existence of concrete facts in support
of their conclusions.
- The
Court notes that at the initial stages of the investigation the risk
that an accused person might pervert the course of justice could
justify keeping him or her in custody. However, after the evidence
has been collected, that ground becomes less strong (see Mamedova
v. Russia, no. 7064/05, § 79, 1 June 2006). Turning to
the facts of the present case, the Court observes that it was not
until 25 July 2003 that the District Court for the first time made
reference to the risk of interference with the witnesses. Apart from
a bald reference to the applicants' being likely to influence
witnesses, the District Court did not mention any specific facts
warranting their detention on that ground. In its subsequent
detention orders the District Court merely repeated the same
conclusion of the collusion risk without citing any reasons why,
notwithstanding the arguments put forward by the applicants in
support of their requests for release, it considered the risk of
interference with the witnesses to exist and to be decisive.
Furthermore, the Court has not lost sight of the fact that throughout
the entire period of the pre-trial investigation and the trial
proceedings leading to their conviction on 9 April 2003 the
applicants were not in custody. The domestic courts did not make any
reference to inappropriate or unlawful behaviour by the applicants
during that period. The Court is therefore not convinced that the
domestic authorities' findings that the applicants were likely to
pervert the course of justice had a sufficient basis in fact.
- The
Court further emphasises that when deciding whether a person should
be released or detained the authorities have an obligation under
Article 5 § 3 to consider alternative measures of
ensuring his or her appearance at the trial (see Sulaoja v.
Estonia, no. 55939/00, § 64, 15 February 2005, and
Jabłoński v. Poland, no. 33492/96, § 83,
21 December 2000). During the entire period under consideration
the authorities did not consider the possibility of ensuring the
applicants' attendance by the use of other “preventive
measures” – such as a written undertaking or bail –
which are expressly provided for by Russian law to secure the proper
conduct of criminal proceedings, or, at the very least, seek to
explain in their decisions why such alternatives would not have
ensured that the trial would follow its proper course.
- In sum, the Court finds that the domestic authorities'
decisions were not based on an analysis of all the relevant facts.
They took no notice of the arguments in favour of the applicants'
release pending trial, such as their family situation and their
behaviour during the two years since the criminal proceedings had
been initiated. It is of particular concern to the Court that the
Russian courts persistently used a stereotyped summary formula to
justify extension of detention for the applicants. In addition, the
District Court, while issuing separate detention orders in respect of
the two applicants, used identical or similar wording to extend their
detention. The Court has already found that the practice of issuing
collective detention orders without a case-by-case assessment of the
grounds for detention in respect of each detainee is incompatible, in
itself, with Article 5 § 3 of the Convention (see
Korchuganova, cited above, § 76; and Dolgova v.
Russia, no. 11886/05, § 49, 2 March 2006).
The Court considers that this conclusion is not altered in the
present case. While extending the applicants' detention by means of
identically or similarly worded detention orders the domestic
authorities had no proper regard to the applicants' individual
circumstances. Furthermore, the Court finds it particularly striking
that two of the five detention decisions issued by the domestic
authorities in respect of the two applicants did not indicate any
reason for their continued detention. These detention orders merely
mentioned that the applicants should remain in detention.
- Having
regard to the above, the Court considers that by failing to refer to
concrete relevant facts or consider alternative “preventive
measures” and by relying essentially on the gravity of the
charges or failing to indicate any ground for the extension, the
authorities extended the applicants' detention on grounds which
cannot be regarded as “sufficient”. They thus failed to
justify the applicants' continued deprivation of liberty for eight
months and eight days.
- The Court is aware of the fact that the majority of
length-of-detention cases that have come before it concern longer
periods of deprivation of liberty and that against that background
eight months and eight days may be regarded as a relatively short
period in detention. However, Article 5 § 3 of the Convention
cannot be seen as authorising pre-trial detention unconditionally
provided that it lasts no longer than a certain minimum period.
Justification for any period of detention, no matter how short, must
be convincingly demonstrated by the authorities (see Shishkov v.
Bulgaria, no. 38822/97, § 66, ECHR 2003 I
(extracts)). That did not happen in the present case (see, for
similar reasoning, Belchev v. Bulgaria, no. 39270/98, §
82, 8 April 2004; Kostadinov v. Bulgaria, no. 55712/00,
§§ 78-80, 7 February 2008; Sarban v. Moldova,
no. 3456/05, §§ 95-104, 4 October 2005; and Patsuria
v. Georgia, no. 30779/04, §§ 68-71, 6 November 2007).
- There
has therefore been a violation of Article 5 § 3 of the
Convention on account of the authorities' failure to justify the
applicants' continued detention.
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
applicants claimed 10,000 euros (EUR) each in respect of
non-pecuniary damage.
- The
Government did not comment.
- The
Court notes that it has found several violations in the present case.
In these circumstances, the Court considers that the applicants'
suffering and frustration cannot be compensated for by the mere
finding of a violation. Making its assessment on an equitable basis,
the Court awards each of the applicants EUR 3,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicants did not seek reimbursement of costs and expenses and this
is not a matter which the Court is required to examine of its own
motion (see Motière v. France, no. 39615/98, § 26,
5 December 2000).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
unlawfulness of the applicants' detention from 5 June to 10 July 2003
and from 8 October 2003 to 9 January 2004 and the excessive
length of their detention on remand admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 (c) of the Convention on account of the applicants'
detention on remand from 5 June to 10 July 2003;
- Holds that there has been no violation of
Article 5 § 1 (c) of the Convention on account of the
applicants' detention on remand from 8 October 2003 to 9 January
2004;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 3,000 (three thousand euros) in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of the 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 amounts 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 9 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André
Wampach Christos Rozakis
Deputy Registrar President
