FIRST SECTION

CASE OF ALEKSANDR SHEVCHENKO v. RUSSIA

(Application no. 48243/11)

JUDGMENT

STRASBOURG

23 July 2015

FINAL

14/12/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Aleksandr Shevchenko v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Isabelle Berro, President,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 30 June 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 48243/11) 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 Aleksandr Nikolayevich Shevchenko (“the applicant”), on 22 June 2011.

2. The applicant was represented by Mr D.S. Romanov, a lawyer practising in Astrakhan. The Russian Government (“the Government”) were represented by Mr G.Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged that the length of his pre-trial detention had not been justified, and that his appeals against several detention orders had not been examined speedily.

4. On 29 August 2013 the complaints concerning unreasonably long pre‑trial detention and lack of speedy review of the lawfulness of the applicant’s pre-trial detention were communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1979 and lives in Volzhskiy, Volgograd Region.

A. The applicant’s arrest and detention pending investigation

6. On 1 October 2010 the applicant was arrested on suspicion of drug offences.

7. On 2 October 2010 he was charged with two episodes of attempted drug trafficking, allegedly committed on 7 and 8 September 2010 in conspiracy with others.

8. On 3 October 2010 Kirovskiy District Court, Astrakhan, (“the District Court”) granted the investigator’s request to place the applicant in detention until 1 December 2010. The District Court held as follows:

“It follows from the evidence provided by the investigator in support of his request for application of a measure of restraint that Mr A.N. Shevchenko is charged with particularly serious criminal offences which represent a significant danger to society and are punishable by deprivation of liberty for a period of five to twelve years.

The charges against the applicant are justified by the report on the detection of the crime, operational search materials, search records, expert reports, and the testimony of Mr A.C. Filenko, which directly implicates Mr Shevchenko in those criminal offences.

Having regard to the above, and also taking into account the circumstances of the case and information on the implication of Mr Shevchenko in the criminal offences, as well as the personality of the defendant, who is not registered as resident in the Astrakhan region and has no job and no dependents, the court has come to the conclusion that at liberty he might abscond and thereby interfere with the proceedings.

Taking into account information about the personality of the defendant and the criminal offences with which he is charged, it is impossible to apply a more lenient measure of restraint.”

9. On 8 October 2010 a further set of criminal proceedings was initiated against the applicant on suspicion of drug offences allegedly committed between the beginning of September and 1 October 2010.

10. On 9 October 2010 those proceedings were joined to the first set of proceedings against the applicant.

11. On 23 November 2010 the District Court extended the applicant’s detention until 20 January 2011. The District Court held as follows:

“Mr A.N. Shevchenko is charged with particularly serious criminal offences punishable by more than two years’ imprisonment.

In taking a decision on this request, the court considers that the investigating authorities reasonably argue that it is impossible to finalise their investigation for objective reasons, such as there being a large number of witnesses and defendants and it being necessary to finish the investigation. The character of the case, its circumstances and the charges [brought against the co-defendants] indicate that the case is particularly complex; this is also due to there being a large number of co‑defendants.

The circumstances which served as the grounds for choosing the measure of restraint in the form of placement in detention have not changed in view of the legal characterisation of the criminal offence. The personality of Mr Shevchenko, his engagement in illegal distribution of narcotic drugs which, as indicated by the evidence, constituted the source of his income, and the absence of any other income, allow the conclusion that the investigator’s request is well founded and that it is necessary to place Mr Shevchenko in isolation from society.

Mr Shevchenko’s term of detention expires on 1 December 2010. This is too short a period of time to carry out planned investigative actions and to take a decision on the charges, and therefore the term of detention of the defendant should be extended.”

12. In his appeal against that detention order the applicant submitted that the District Court had based its decision on negative assumptions about his future behaviour, and had not taken into account his personality, positive references and permanent place of residence.

13. On 3 December 2010 the Astrakhan Regional Court (“the Regional Court”) upheld the detention order of 23 November 2010.

14. On 14 January 2011 the District Court extended the applicant’s detention until 20 March 2011. The District Court held as follows:

“The court takes into account that Mr A.N. Shevchenko is charged with particularly serious criminal offences ... punishable exclusively by deprivation of liberty for up to twelve years, and therefore the court comes to the conclusion that the investigating authorities’ argument, that if released the defendant, fearing punishment, might abscond, since he has no registration or permanent place of residence in the Astrakhan region, is well founded.

The court also takes into account that the criminal case is particularly complex, since it involves several co-defendants, and there should be individual investigations in respect of each co-defendant. In addition, there is a large volume of planned investigating activities.

Having regard to the above, the court comes to the conclusion that there exist no grounds for quashing or altering the measure of restraint.

It has not been established in the court hearing that there exist any factors preventing the applicant from being kept in a remand prison. The grounds on which the measure of restraint was initially applied and extended have not changed.

The court also takes into account that the term of the defendant’s detention is set to expire, whereas the investigation is not yet complete and it is necessary to carry out a number of investigating activities which would require additional time.”

15. On 17 January 2011 the applicant appealed against the detention order of 14 January 2011 to the Astrakhan Regional Court (“the Regional Court”). The applicant submitted that the court’s conclusion regarding the risk that he would abscond was not supported by specific evidence. The court had not taken into account his positive references, permanent place of residence and his argument that the investigation of the case was delayed intentionally.

16. On 13 March 2011 the prosecuting authorities terminated the criminal proceedings against the applicant on charges of 2 October 2010 of two episodes of attempted drug trafficking, in the absence of corpus delicti. They considered that the applicant’s actions had to be qualified as illegal purchase and storage of narcotic drugs without purpose of sale.

17. On 15 March 2011 the District Court extended the applicant’s detention until 20 May 2011. The District Court held as follows:

“The court takes into account that Mr A.N. Shevchenko is charged with offences ... which are punishable by deprivation of liberty for a period of up to twelve years. The court comes to the conclusion that the investigating authorities’ argument, that Mr Shevchenko might abscond because of fear of punishment, is well founded. In addition, Mr Shevchenko has no family or dependents; he has no official employment, and therefore no permanent source of income. Mr Shevchenko has no place of residence nor registration in the territory of Astrakhan or Astrakhan region. Mr Shevchenko has previous convictions, and has an outstanding conviction, all of which characterise him as a person disposed to commit crimes. At present the investigation of the criminal case has not been completed.

The evidence before the court allow the conclusion that there exist no grounds for altering or changing the measure of restraint applied to the defendant.

It has not been established in the court hearing that there are grounds which would prevent the defendant from being held in detention in the remand prison.

The argument submitted by the defence and the defendant, that the defendant had no intention of absconding, are not sufficient to alter the measure of restraint to a preventive measure not involving pre-trial detention.

Having regard to the above, the court comes to the conclusion that it is impossible to apply other measures of restraint, including a written undertaking, personal surety, or bail.

The court also takes into account that a number of investigating activities have been planned in the present case. In addition, within fourteen days of the arrival of the case at the trial court ... a judge has to take a decision about the existence or otherwise of grounds for further extension of the detention ... therefore the court finds it necessary to extend the pre-trial detention in respect of Mr Shevchenko.”

18. In his appeal against the detention order of 15 March 2011 the applicant submitted that the detention order had not been based on relevant and sufficient reasons.

19. On 16 March 2011 the applicant was charged with illegal purchase and storage of narcotic drugs without intent to sell.

20. On 18 March 2011 the Regional Court upheld the detention order of 14 January 2011.

21. On 23 March 2011 the Regional Court upheld the detention order of 15 March 2011.

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