FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4378/02
by Anatoliy Petrovich BYKOV
against Russia
The European Court of Human Rights (First Section), sitting on
7 September 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev, judges,
and Mr S. Nielsen, Registrar,
Having regard to the above application lodged on 21 December 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anatoliy Petrovich Bykov, is a Russian national, who was born in 1960 and lives in Krasnoyarsk. He is represented before the Court by Mr G. Padva, a lawyer practicing in Moscow, Dr. D. Krauss, Professor of Law at the Humbolt University, Berlin, and Mr J. Pastille, a lawyer practising in Berlin. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was in 1997-99 a board chairman of the Krasnoyarsk Aluminium Plant. At the time of his arrest in October 2000 he was a major shareholder and an executive of a corporation OAO “Krasenergomash-Holding” and a founder of a number of affiliated firms. He was also a deputy of the Krasnoyarsk Regional Parliamentary Assembly.
In September 2000 the applicant had allegedly ordered V, a man of his entourage, to kill Mr S, the applicant’s former business associate. V did not comply with the order, but on 18 September 2000 reported the applicant to the Federal Security Service of the Russian Federation (the FSB). On the following day V handed in the gun which he had allegedly received from the applicant.
On 21 September 2000 the Prosecutor of the Severo-Zapadnyy District of Moscow opened a criminal investigation against the applicant on suspicion of a conspiracy to murder.
On 26 and 27 September 2000 the FSB and the police decided to conduct a covert operation to obtain evidence which could clarify the allegation of the applicant’s intention to murder S. They intended to convey the message to the applicant that the assassination had taken place and to survey how the applicant would react to V’s report on the completion of the task.
On 29 September 2000 the police staged a discovery of two dead men at S’s home. They officially announced in the media that one of those killed had been identified as S. Another man was his business partner, Mr I.
On 3 October 2000 V came to see the applicant at home. He carried a hidden radio-transmitting device while a police officer outside received and recorded the transmission. Following the instructions, V told the applicant that he had carried out the assassination and engaged the applicant in a conversation. As a proof of his accomplishment he handed to the applicant several objects borrowed from S and I: a certified copy of a mining project feasibility study marked with a special chemical agent, two watches belonging to S and I and USD 20,000. At the end of the conversation V took the cash, as suggested by the applicant.
The police obtained a 16 minute recording of a dialogue between V and the applicant.
On 4 October 2000 the applicant’s house was searched. Several watches were seized, including those belonging to S and I. The chemical examination was conducted which revealed the presence on the applicant’s hands of the chemical agent which had been used to mark the feasibility study. The applicant was arrested.
On 6 October 2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered the applicant’s detention on remand, having found that it was “in accordance with law” and necessary in view of the gravity of the charge and a risk that the applicant would influence the witnesses. Further extensions were ordered on 17 November 2000 (until 21 December 2000) and on 15 December 2000 (until 21 March 2001). The reasons for the continued detention were the gravity of the charge and the risk of influencing the witnesses and obstructing the investigation. The applicant appealed against each of these decisions to the court.
On 13 October 2000 the applicant was charged with a conspiracy to murder. Subsequently the charges were extended, to include a conspiracy for acquisition, possession and dealing with firearms.
On 8 December 2000 two appointed expert linguists examined the recording of the applicant’s conversation with V. They found that V showed subordination to the applicant, that the applicant had shown no sign of mistrusting V’s confession to a murder and that he insistently questioned V on the technical details of its execution. They established that V and the applicant had a close relationship and that the applicant played an instructive role in the conversation.
On 11 January 2001 the investigation was completed and the applicant was allowed access to the case file.
Following the applicant’s appeal, on 26 January 2001 the Lefortovskiy District Court of Moscow confirmed the lawfulness of his detention on remand. The court referred to the gravity of the charge and noted that this measure was applied in accordance with the law. The applicant brought a further appeal, which was also dismissed by the Moscow City Court.
On 12 March 2001 the prosecutor sought the consent of the Krasnoyarsk Regional Parliamentary Assembly to submit the case to the court, as it was supposedly necessary to overcome the applicant’s immunity as a deputy.
In view of the forthcoming expiry of the applicant’s term of detention its further extension was ordered by the competent prosecutor, first on 15 March 2001, until 4 April 2001, and then on 21 March 2001, until 4 June 2001. The applicant challenged the extensions before the court.
In reply to the prosecutor’s enquiry, on 10 April 2001 the Krasnoyarsk Regional Parliamentary Assembly objected to the submission of the applicant’s criminal case to the court. On the following day the Deputy Prosecutor General challenged this objection before the Krasnoyarsk Regional Court.
On 11 April 2001 the Lefortovskiy District Court of Moscow dismissed the applicant’s claim of immunity and declared that the applicant’s detention until 4 June 2001 was lawful and necessary due to the gravity of the charge. The applicant filed an appeal with the Moscow City Court which was dismissed on 15 May 2001. The appeal instance considered the applicant’s detention lawful and necessary “until the bill of indictment had been submitted or until the applicant’s immunity had been confirmed”.
On 3 May 2001 the Krasnoyarsk Regional Court pronounced a judgment in which it found that the consent of the Krasnoyarsk Regional Parliamentary Assembly was not necessary in order to proceed with the applicant’s criminal case. The applicant appealed to the Supreme Court of the Russian Federation, but on 17 August 2001 the appeal was dismissed on the grounds that the local Assembly’s objection was based on the local legislation which itself was contrary to the Constitution.
In the meantime, on 22 May 2001 the Deputy Prosecutor General extended the applicant’s detention on remand until 4 September 2001, still on the grounds of the gravity of the charge and the risk of influencing the witnesses and obstructing the investigation.
On 27 August 2001 the case was submitted to the Tushinskiy District Court of Moscow. From then it was in the court’s competence to authorise the applicant’s continued detention.
On 7 September 2001 the Tushinskiy District Court of Moscow scheduled the hearing for 26 September 2001 and authorised the applicant’s further detention without indicating reasons. The applicant challenged the Tushinskiy District Court’s jurisdiction and his continued detention. The Moscow City Court examined and dismissed the applicant’s appeal on 3 October 2001, having upheld his continued detention without elaborating on the reasons. As to the question of jurisdiction, it held that it could not be raised on appeal.
The applicant contested the Tushinskiy District Court’s jurisdiction by a separate motion filed on 5 October 2001, and during the court hearing on 22 October 2001. He requested a transfer of the case to the Krasnoyarsk Regional Court which allegedly had jurisdiction. On the latter date the Tushinskiy District Court declined jurisdiction, but in favour of another court, the Meshchanskiy District Court of Moscow, having established that the venue of the attempted murder lay within that territory.
On 21 December 2001 the Meshchanskiy District Court of Moscow scheduled the hearing for 4 January 2002 and authorised the applicant’s further detention, invoking no reasons. It again reviewed the lawfulness of the applicant’s detention on 4 January 2002 but found it still necessary due to the gravity of the charges and the “circumstances of the case”. The applicant’s appeal to the Moscow City Court was dismissed on 15 January 2002.
The applicant’s other application for release was examined on 23 January 2002 and, as before, the Meshchanskiy District Court of Moscow refused the applicant’s release citing the gravity of the charge, the risks of fleeing the trial and influencing the witnesses.
On 19 June 2002 the Meshchanskiy District Court of Moscow examined the charges against the applicant. The applicant pleaded not guilty to the charges and contested the court’s jurisdiction. At the trial he also challenged the admissibility of the recording of his conversation with V and of all other evidence obtained through the covert operation. He alleged that the police interference had been unlawful and that he had been induced into self-incrimination. Furthermore, he claimed that the recording involved unauthorised intrusion into his premises. He contested t
