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FIRST
SECTION
CASE OF YEVGENIY KUZMIN v. RUSSIA
(Application no. 6479/05)
JUDGMENT
STRASBOURG
3 May 2012
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 Yevgeniy Kuzmin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 10 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6479/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Yevgeniy Nikolayevich
Kuzmin (“the applicant”), on 2 December 2004.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, the absence of sufficient and
relevant grounds for his lengthy detention on remand.
- On
10 November 2010 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1982 and lives in Mariinsk, Kemerovo Region.
- On
8 September 2003 the applicant was arrested on suspicion of
aggravated assault and causing death by negligence in order to
extract a confession from a suspect.
- On 10 September 2003 the Mariinsk Town Court of the
Kemerovo Region (“the Town Court”) ordered that the
applicant be placed in detention. The court noted, in particular,
that the applicant was suspected of a particularly serious criminal
offence and that, being a police officer, he could use his
professional experience in order to influence witnesses and obstruct
the investigation. The decision was upheld on appeal by the Kemerovo
Regional Court (“the Regional Court”) on 22 September
2003.
- On 31 October 2003 the Town Court extended the
applicant’s pre-trial detention until 29 November 2003, stating
that he was charged with serious and particularly serious offences
and that, if at liberty, he could obstruct the establishment of the
truth and influence witnesses. On 4 December 2003 the Regional Court
upheld that decision on appeal.
- According
to the applicant, on 29 November 2003 – the last day of the
period of his pre-trial detention authorised by the Town Court in its
decision of 31 October 2003 – the authorities of a detention
centre where he was being held at that moment refused to release him
with reference to a letter of the Mariinsk Town prosecutor stating
that on 28 November 2003 the file of his criminal case had been
sent to a court. In the applicant’s submission, the case file
was not in fact sent to the court until 1 December 2003.
- On 7 December 2003 the Town Court scheduled a hearing
in the applicant’s case and ordered that the applicant remain
in detention. It did not specify the time-limit for the applicant’s
detention, nor did it give any reasons for that decision.
- On 16 December 2003 the Town Court ordered that the
case file be returned to the investigating authorities so that the
applicant would have an opportunity to study it. It also stated that
the preventive measure applied in respect of the applicant “should
remain the same”. It did not specify the time-limit for the
applicant’s detention, nor did it give any reasons for that
decision.
- On 22 December 2003 the Town Court scheduled a hearing
in the applicant’s case and ordered that he remain in
detention. It did not specify the time-limit for the applicant’s
detention, nor did it give any reasons for that decision.
- By a decision of 26 May 2004 the Town Court extended
the term of the applicant’s detention pending trial until 1
September 2004. It referred to the applicant’s personality, the
fact that he was charged with serious and particularly serious
criminal offences and the fact that he had pleaded not guilty, which,
in the court’s opinion, suggested that he might obstruct the
establishment of the truth, if released.
- On 19 July 2004 the Town Court further extended the
applicant’s pre-trial detention until 1 December 2004, relying
on the same reasons as those indicated in the decision of 26 May
2004. That decision was upheld on appeal by the Regional Court on 7
September 2004.
- By
a judgment of 22 November 2004 the Town Court convicted the applicant
as charged and sentenced him to five years and six months’
imprisonment. That judgment was upheld on appeal by the Regional
Court on 22 March 2005.
- At
some point the applicant attempted to have criminal proceedings
instituted against the Mariinsk Town prosecutor who, according to
him, had provided the authorities of a detention centre where he had
been held at the material time false information stating that the
file of his criminal case had been sent to a court on 28 November
2003, whereas in reality it had not been sent there until 1 December
2003. The applicant complained that on the basis of that false
information, he had remained in detention after 29 November 2003,
when the term of his pre-trial detention established in the court
order of 31 October 2003 had expired.
- On 28 June 2005 the Tsentralny District Court of
Kemerovo rejected the applicant’s complaint against the
decision of the prosecutor’s office of the Kemerovo Region to
dispense with criminal proceedings against the Mariinsk Town
prosecutor. This decision was upheld on appeal by the Regional Court
on 18 August 2005. The courts confirmed that the prosecutor’s
office’s decision was lawful and well-founded, since there was
no evidence of any criminal offence in the actions of the official in
question, as he had not breached any provisions of domestic criminal
law, or law on criminal procedure, and there was no evidence of any
unlawfulness of the applicant’s detention during the period
complained of.
II. RELEVANT DOMESTIC LAW
- Since
1 July 2002, criminal-law matters have been governed by the Russian
Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001).
A. Preventive measures
- “Preventive
measures” include an undertaking not to leave a town or region,
personal surety, bail and detention (Article 98). When deciding on a
preventive measure, the competent authority is required to consider
whether there are “sufficient grounds to believe” that
the accused would abscond during the investigation or trial, reoffend
or obstruct the establishment of the truth (Article 97). 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). In
exceptional circumstances, and when there exist grounds provided for
by Article 97, a preventive measure may be applied to a suspect,
taking into account the circumstances listed in Article 99 (Article
100). If necessary, the suspect or accused may be asked to give an
undertaking to appear in court (Article 112).
B. Time-limits for detention
1. Two types of custody
- The
Code makes a distinction between two types of custody: the first
being “pending 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 “pending trial”), at the judicial stage.
2. Limits of duration for detention “pending
investigation”
- A
custodial measure may only be ordered by a judicial decision in
respect of a person who is suspected of, or charged with, a criminal
offence punishable by more than two years’ imprisonment
(Article 108). The maximum period for detention pending investigation
is two months (Article 109). A judge may extend that period up
to six months (Article 109 § 2). Further extensions may
only be granted by a judge if the person is charged with serious or
particularly serious criminal offences (Article 109 § 3).
No extension beyond eighteen months is permissible and the detainee
must be released immediately (Article 109 § 4).
3. Limits of duration for detention “pending
trial”
- From
the time the prosecutor sends the case to the trial court, the
defendant’s detention falls under the category of “before
the court” (or “pending trial”). The period of
detention pending trial is calculated up to the date on which the
first-instance judgment is given. It may not normally exceed six
months from the moment the case file arrives at the court, 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that the domestic authorities had failed to
provide sufficient reasons for his continued pre-trial detention.
This complaint falls to be examined under Article 5 § 3 of the
Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument, contending that there had been
relevant and sufficient grounds for the applicant’s detention
throughout its entire period. They pointed out that the applicant had
been suspected of having committed a serious and particularly serious
criminal offence and that, being a police officer, he could have used
his professional experience and connections to obstruct the
investigation and influence witnesses. The Government referred, in
particular, to a witness interview of a certain Ms P., an eyewitness
to the incident imputed to the applicant, who stated that police
officers had threatened her with violence if she testified against
the applicant. In the Government’s submission, at the trial Ms
P. had changed the statements incriminating the applicant she had
made during the preliminary investigation, instead stating that he
had not assaulted the victim. The Government therefore argued that,
by keeping the applicant in detention, the authorities had protected
other persons involved in the criminal proceedings in that case and
avoided a miscarriage of justice. They also pointed out that the
entire period of the applicant’s detention on remand was then
deducted from the term of imprisonment imposed on him by the judgment
of 22 November 2004.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- According
to the Court’s well-established case-law, in determining the
length of detention pending trial for the purposes of Article 5 §
3 of the Convention, the period to be taken into consideration begins
on the day the accused is taken into custody and ends on the day when
the charge is determined, even if only by a court of first instance
(see, among many other authorities, Belevitskiy v. Russia, no.
72967/01, § 99, 1 March 2007).
- In the present case, the applicant’s detention
lasted from 8 September 2003, when he was arrested, until 22
November 2004, when he was convicted by the trial court, that is, for
one year, two months and fourteen days. Even if this period does not
appear particularly excessive in itself, the Court reiterates that
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)).
- The
Court is prepared to accept that the applicant’s detention in
the present case could have initially been warranted by a reasonable
suspicion that he had been involved in the commission of a criminal
offence. In this connection, it reiterates that 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. However, 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 (see Labita v.
Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV).
- In
the present case, the domestic courts authorised the extension of the
applicant’s detention on remand on six occasions, of which on
three occasions they relied mainly on the seriousness of the charges
against the applicant and his potential to abscond, influence the
witnesses, or obstruct the course of the investigation, if at large
(see paragraphs 8, 13 and
14 above) and on the other three occasions the
courts gave no reasons at all (see paragraphs 10-12
above).
- As
regards the courts’ reliance on the seriousness of charges as
the decisive element, the Court has repeatedly held that this reason
cannot by itself serve to justify long periods of detention (see,
among other authorities, Khudoyorov v. Russia, no. 6847/02, §
180, ECHR 2005 X (extracts)). Although the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or reoffending, the need to continue the deprivation of
liberty cannot be assessed from a purely abstract point of view,
taking into consideration only the gravity of the offence. Nor can
continuation of the detention be used to anticipate a custodial
sentence (see Letellier v. France, 26 June 1991, § 51,
Series A no. 207; Ilijkov v. Bulgaria, no. 33977/96,
§ 81, 26 July 2001; Goral v. Poland, no. 38654/97,
§ 68, 30 October 2003; and Panchenko v. Russia,
no. 45100/98, § 102, 8 February 2005). This is
particularly true in cases, such as the present one, where the
characterisation in law of the facts – and thus the sentence
faced by the applicant – was determined by the prosecution
without judicial review of whether the evidence collected supported a
reasonable suspicion that the applicant had committed the imputed
offence (see Rokhlina v. Russia, no. 54071/00, § 66,
7 April 2005).
- It
remains to be ascertained whether the domestic courts established and
convincingly demonstrated the existence of concrete facts in support
of their conclusions that the applicant was likely to abscond,
influence witnesses, or obstruct the course of justice. The Court
reiterates in this respect 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, cited above, § 67, and
Ilijkov, cited above, §§ 84-85).
- In
the present case, the Government argued that the applicant had been a
police officer and therefore could have used his professional
experience and connections to influence witnesses and obstruct the
investigation. They referred, in particular, to statements of a
certain witness P., who had alleged that she had been threatened by
police officers if she testified against the applicant, and who at
the trial had repudiated her statements incriminating the applicant
which she had made at the pre-trial stage (see paragraph 24 above).
The Court would be prepared to accept that such an argument could be
regarded as “relevant and “sufficient” in the
applicant’s situation. It notes, however, that it was only on
one occasion that a domestic court referred to the applicant’s
professional status and his ability to influence witnesses if at
large, and namely when the applicant’s initial detention on
remand was authorised in the decision of 10 September 2003 (see
paragraph 7 above). Even on that occasion, the
court merely referred to the applicant’s ability to influence
witnesses, without going into any details similar to those indicated
by the Government. None of the further court orders by which the
applicant’s detention was extended ever mentioned the
applicant’s professional status as the reason for his continued
detention. In fact, on one occasion a domestic court stated in its
extension order that the applicant could influence witnesses or
obstruct the investigation (see paragraph 8
above), then three times merely stated that the preventive measure
applied should remain the same (see paragraphs 10 12
above), and on another two occasions referred to the applicant’s
personality and suggested that he may obstruct the establishment of
the truth in his case because he had pleaded innocent (see paragraphs
13 and 14 above).
- At
no point, however, did the domestic court describe the applicant’s
personality in detail, disclose any evidence, or mention any
particular facts of the applicant’s case warranting his
continued detention. The judiciary never specified why it considered
the risk of his absconding or interfering with the witnesses or with
the course of justice to exist and to be decisive. Moreover, the
preliminary investigation in the present case appears to have ended
by 28 November 2003, when the case file was sent to a court for
trial, but the applicant remained in detention on remand for another
year, until 22 November 2004. The Court reiterates in this
connection that whilst 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, after the evidence has been
collected that ground becomes less strong (see Mamedova v. Russia,
no. 7064/05, § 79, 1 June 2006).
- 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). It
does not appear that during the period under consideration the
domestic courts once considered the possibility of ensuring the
applicant’s attendance by the use of other “preventive
measures” – such as a written undertaking not to leave a
specified place or bail – which are expressly provided for by
Russian law to secure the proper conduct of criminal proceedings, or,
at the very least, that they sought to explain in their decisions why
such alternatives would not have ensured that the trial followed its
proper course.
- Having
regard to the materials in its possession, the Court is not convinced
that the domestic courts’ decisions were based on a sufficient
analysis of all the relevant facts. While extending the applicant’s
detention by means of identically or similarly worded detention
orders, the domestic authorities had no proper regard to the
individual circumstances of the present case.
- Overall,
the Court considers that by failing to refer to specific relevant
matters or to consider alternative “preventive measures”
and by relying essentially on the seriousness of the charges, the
authorities extended the applicant’s detention on grounds which
cannot be regarded as “sufficient”. They thus failed to
justify the continued deprivation of the applicant’s liberty.
In such circumstances it is therefore not necessary to examine
whether the case was complex or whether the proceedings were
conducted with “special diligence”.
- In
the light of the foregoing consideration, the Court finds that there
has been a violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that there had been no lawful basis for his
detention between 30 November and 7 December 2003. He referred
to Article 5 § 1 (c) of the Convention, which, in its relevant
parts, 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;
...”
- The
Court observes that the period of the applicant’s detention on
remand authorised by a court decision of 31 October 2003 expired on
29 November 2003, and that from 30 November until 7 December
2003 the applicant’s detention was not covered by any court
order. During that latter period the applicant remained in detention
on the ground that his case was sent to a court on 28 November 2003
(see paragraph 9 above). Subsequently he sought to have criminal
proceedings instituted against the Mariinsk Town prosecutor who had
informed the authorities of the detention centre, where he had been
held at that time, that his case had been sent to a trial court on 28
November 2003, whereas, in fact, it had not been sent there until 1
December 2003, with the result that the authorities failed to release
him upon the expiry of the term of his detention authorised on
31 October 2003. This request was, however, dismissed by the
prosecutor’s office of the Kemerovo Region whose decision was
then upheld by the Tsentralny District Court of Kemerovo on 28 June
2005 and then by the Kemerovo Regional Court on 18 August 2005,
since, according to the domestic law, no criminal acts were committed
(see paragraph 17 above).
- The
present application was lodged on 2 December 2004. It follows,
therefore, that the applicant can only be considered as having
complied with the six month rule set out in Article 35 § 1 of
the Convention in respect of this part of the application if the
criminal proceedings which he attempted to institute can be
considered to be an “effective remedy” within the meaning
of this provision.
- The
Court reiterates that for a remedy to be effective it should be able
to find in the applicant’s favour and to afford adequate
redress. In the circumstances of the present case, however, the Court
does not consider these requirements to be fulfilled. As is clear
from the domestic courts’ decisions, the Mariinsk Town
prosecutor did not breach any provisions of the domestic criminal law
or law on criminal procedure, and therefore the detention centre
authorities’ failure to release the applicant was not in breach
of the domestic law either. Accordingly, any recourse to this remedy
would from the outset be without any prospects of success. In the
light of the foregoing, the Court considers therefore that it should
not take into account the date of the Kemerovo Regional Court’s
decision for the purpose of calculating the six month period in the
present case (see, in a somewhat similar context, Zenin v. Russia
(dec.), no. 15413/03, 24 September 2009).
- It follows that this
part of the application has been lodged out of time and must be
rejected pursuant to Article 35 §§ 1 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed compensation in respect of non-pecuniary damage for
his lengthy detention on remand, without specifying an amount.
- The
Government argued that there had been no violation of the applicant’s
Convention rights in the present case, and that therefore he was not
entitled to any compensation.
- The
Court observes that it has found a violation of Article 5 § 3 on
account of the applicant’s continued detention on remand in the
absence of “sufficient” reasons. The applicant must have
suffered anguish and distress on account of that infringement of his
right to liberty. Having regard to these considerations and judging
on an equitable basis, the Court finds it reasonable to award the
applicant 1,000 euros (EUR) under this head, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
- The
applicant did not submit any claim for costs and expenses. Thus, the
Court does not make any award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 5 § 3
of the Convention admissible and the remainder of the application
inadmissible;
- 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 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 3 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
