FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 7923/04
by Mikhail Sergeyevich BUTUSOV
against Russia
The European Court of Human Rights (First Section), sitting on 12 October 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 29 January 2004,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mikhail Sergeyevich Butusov, is a Russian national who was born in 1979. The applicant is serving his sentence in Kopeysk, the Chelyabinsk Region.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and detention on remand
On 16 July 2003 the applicant was arrested on suspicion of having committed a robbery. He did not complain about his arrest to a court.
The applicant submits that on the same day a line-up identification took place during which the victim did not identify him.
Between 5.30 and 5.50 pm on 16 July the applicant was questioned by the police officers who asked him how he had been dressed in the evening of 16 July.
Between 6 and 6.20 pm on 16 July the second line-up identification was conducted. The victim identified the applicant by his haircut, big arms and height.
The applicant alleges that the victim identified him because the investigator in charge of his case had shown him the record of the applicant’s questioning which contained a detailed description of the applicant.
On 18 July 2003 the Snezhinsk Town Court of the Chelyabinsk Region ordered the applicant’s release under the recognizance not to leave the town without permission. The applicant did not appeal against that decision.
On 23 July 2003 the Snezhinsk Town Court ordered the applicant’s detention on remand. The court held that his detention was justified on the ground of his two previous convictions, the gravity of the offence, the risk that he would abscond, obstruct investigation of the case, commit another crime or hinder the execution of the sentence.
On 25 July 2003 the applicant’s lawyer lodged an appeal against the decision of 23 July 2003. He contested that the applicant would abscond or obstruct investigation of the case or commit another crime. He did not address the ground that the applicant would hinder the execution of the sentence. The appeal was registered by the Snezhinsk Town Court under no. 132. It appears that the appeal has never been considered by a court.
On 17 September 2003 the Snezhinsk Town Court extended the applicant’s detention on remand referring to the same grounds as in the decision of 23 July 2003. The applicant did not appeal against that decision.
On 23 September 2003 the victim was questioned and stated that he had identified the applicant by his clothes.
On 26 September 2003 the Snezhinsk Town Court extended the applicant’s detention on remand on the same grounds as in the decisions of 23 July and 17 September 2003. The applicant did not appeal against that decision.
2. The trial
On 4 November 2003 the Snezhinsk Town Court found the applicant guilty of aggravated robbery and sentenced him to ten years’ imprisonment. The court excluded from the trial the results of both line-up identifications of 16 July 2003 as conducted with procedural defects.
On an unspecified date the prosecutor filed his grounds of appeal.
On an unspecified date the applicant and his lawyer lodged their grounds of appeal. They requested to quash the applicant’s conviction and to discontinue criminal proceedings against him because his guilt had not been proven.
On 15 January 2004 the Chelyabinsk Regional Court examined the applicant’s case. The applicant submits that the proceedings before the appeal court were not adversarial as the prosecutor withrew his grounds of appeal and therefore he could not comment on them. He also alleges that the appeal instance failed to address the totality of his grounds of appeal.
It follows from the decision of 15 January 2004 that the appeal court heard the submissions of both parties and examined their written observations. The prosecutor supported the charges brought against the applicant and requested the court to reduce the term of imprisonment. The court upheld the applicant’s conviction and reduced the term of imprisonment to eight years.
On 13 April 2005 the President of the Supreme Court of the Russian Federation granted the applicant’s motion for supervisory review of the judgment of 4 November 2003 as upheld by the decision of 15 January 2004 and remitted the case for examination on the merits to the Presidium of the Chelyabinsk Regional Court.
On 1 June 2005 the Presidium of the Chelyabinsk Regional Court upheld the applicant’s conviction.
3. Proceedings against the investigator
On an unspecified date the applicant requested the Prosecutor’s Office of Snezhinsk to initiate criminal proceedings against the investigator who had been in charge of his case for falsification of evidence.
On 29 December 2003 the investigator with the Prosecutor’s Office of Snezhinsk rejected his request.
On 11 June 2004 the Snezhinsk Town Court dismissed the applicant’s complaint against the decision of 29 December 2003.
On 9 August 2004 the Chelyabinsk Regional Court upheld the decision.
COMPLAINTS
The applicant complained under Article 5 § 4 of the Convention that domestic courts had never examined his appeal against the decision of 23 July 2003 ordering his detention on demand.
He complained under Article 5 §§ 1 (c) and 3 of the Convention that the domestic courts had not had sufficient grounds to extend on several occasions his detention on remand.
The applicant complained under Article 6 § 2 of the Convention that when ordering his detention on remand on 23 July 2003 and extending it on 17 and 26 September 2003 the domestic court had held that he could commit another crime or hinder the execution of sentence and therefore had violated his presumption of innocence.
He complained under Article 6 of the Convention that the domestic courts had based his conviction on the victim’s testimony and had not taken into account the testimony of defence witnesses, had not examined certain pieces of evidence, that they had relied on the results of the second line-up identification conducted on 16 July 2003 and had ignored that during the first line-up identification the victim had pointed out another person. He complained that the victim had pointed out him during the second line-up identification after having read the protocol of his questioning in which he had described his clothes.
He also complained under Article 6 of the Convention that the proceedings before the appeal court on 15 January 2004 had not been adversarial as the prosecutor had withdrawn his grounds of appeal and therefore he could not comment on them. He also complained that the appeal instance had failed to address the totality of his grounds of appeal.
He complained under Article 6 § 3 of the Convention that the Prosecutor’s Office of Snezhinsk had refused to initiate criminal proceedings against the investigator in charge of his case and that the domestic court had upheld that decision.
He finally complained under Article 14 of the Convention of discrimination against him.
THE LAW
1. The applicant complained under Article 5 § 4 about the lack of judicial review of his appeal against the court decision ordering his detention on remand. Article 5 § 4 of the Convention provides as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The Court examined the other complaints raised by the applicant before it. However, in the light of all the material in its possession, and insofar as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the lack of judicial review of his appeal against the detention order (Article 5 § 4);
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy