THIRD SECTION
CASE OF BURMAGA v. RUSSIA
(Application no. 4345/06)
JUDGMENT
STRASBOURG
20 September 2016
This judgment is final but it may be subject to editorial revision.
In the case of Burmaga v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena Jäderblom, President,
Dmitry Dedov,
Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 30 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 4345/06) 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 Eduard Andreyevich Burmaga (“the applicant”), on 16 December 2005.
2. The applicant was represented by Mr I. P. Shcherbakov, a lawyer practising in Krasnoyarsk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3. On 2 December 2011 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
4. The applicant was born in 1973 and lives in Krasnoyarsk.
5. On 16 March 2001 a senior investigator of the Krasnoyarsk regional prosecutor’s office charged the applicant with large-scale trafficking in firearms and ammunition and issued a warrant for his arrest.
6. On 3 June 2002 and in view of the additional charges brought against the applicant another arrest warrant was issued. This decision did not set a time-limit for the applicant’s detention and it has never been served on him.
7. On 27 September 2003 the applicant was arrested in Monaco and on 29 April 2005 he was extradited to Russia. He was placed in remand prison IZ-77/4 in Moscow with a view to a subsequent transfer to Krasnoyarsk.
8. Before his final admission to Krasnoyarsk prison, the applicant was held in several different remand prisons and repeatedly complained about his unlawful detention.
9. On 11 May 2005 criminal proceedings against the applicant were resumed. On the same day the investigator from the Krasnoyarsk Prosecutor’s office initiated a request for extension of the applicant’s detention.
10. On 31 May 2005 the Krasnoyarsk Regional Court extended the applicant’s detention from 10 May 2005 until 17 August 2005 inclusive. The matter was heard in the presence of the investigator, the prosecutor ‒ who supported the application for extension ‒ and counsel Mr V., who left the issue of the applicant’s detention for determination by the court.
11. On 8 June 2005 he arrived at Krasnoyarsk prison IZ-24/1.
12. On 24 June 2005 the applicant filed a statement of appeal. He submitted in particular that his detention had been contrary to the requirements of the Russian Constitution and the new Code of Criminal Procedure, that the arrest warrants of 16 March 2001 and 3 June 2002 had never been served on him or his counsel, and that the detention hearing had been held in his absence.
13. On 17 August 2005 the Supreme Court of the Russian Federation upheld this detention order on appeal, in the presence of only the prosecutor.
14. On 21 May 2007, after two rounds of proceedings, the Regional Court found the applicant guilty of attempted murder, causing grievous bodily harm and leadership of a criminal enterprise and sentenced him to eleven years’ imprisonment.
15. On 19 February 2008 the Supreme Court upheld the conviction.
B. The applicant’s complaints concerning refusals of family visits
16. On 20 December 2006 he complained to the Zheleznodorozhny District Court of Krasnoyarsk, which had territorial jurisdiction over the place of his detention, about unjustified delays in the criminal proceedings and a violation of the right to respect for his family life. He alleged that following his conviction on 9 February 2006, he had not been allowed to have any visits from his relatives.
17. On 28 December 2006 the District Court declared his complaint inadmissible, finding that the matters complained of were outside the court’s jurisdiction. On 27 February 2007 the Krasnoyarsk Regional Court upheld the inadmissibility decision at final instance.
18. On 13 March 2007 the applicant had a meeting with his mother.
II. RELEVANT DOMESTIC LAW AND PRACTICE
19. Until 1 July 2002 criminal-law matters 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. Time-limits for detention
20. Under the old CCrP, a decision ordering pre-trial detention could be taken by a prosecutor or a court (Articles 11, 89 and 96). After arrest a suspect could be placed in custody “pending investigation” for an initial two-month period (Article 97 of the old CCrP). Further extensions could be granted by prosecutors at ascending levels of jurisdiction.
21. Under the new CCrP, before a defendant can be detained or his or her detention extended (Article 108 §§ 1, 3-6) there must be a judicial decision by a district court on a reasoned request for detention by a prosecutor, supported by appropriate evidence.
22. In accordance with Federal Law no. 177-FZ of 18 December 2001 governing the entry into force of the new CCrP, detention orders issued before 1 July 2002 remain in force in accordance with the time-limits set out in those orders (Article 10 § 3).
B. Examination of an extension request
23. An application for an extension of a defendant’s detention may be lodged either with the court within the territorial jurisdiction of which the preliminary investigation is carried out or with the court where the defendant is detained (Article 109 § 8 of the new CCrP).
24. An application for an extension of a defendant’s detention may not be examined by a court in the defendant’s absence, except in cases where the defendant has been admitted for an inpatient forensic psychiatric examination or where other circumstances precluding his presence have been shown to exist by appropriate documents. In such cases, the participation of the defendant’s counsel is mandatory (Article 109 § 13 of the new CCrP). If the defendant cannot be present, the court must give a separate decision setting out the reasons which rendered his presence impossible (Article 109 § 14 of the new CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
25. The applicant complained that his detention between 29 April and 31 May 2005 had been unlawful. He further complained that on 31 May 2005 the Krasnoyarsk Regional Court had extended his detention in his absence and that his ensuing detention on the basis of that detention order was unlawful. He relied on Article 5 of the Convention, of which the relevant parts read:
“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...
...
4. 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...”
A. Admissibility
26. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B. Merits
27. The Government argued that the applicant’s detention between 29 April and 31 May 2005 had been based on the prosecutor’s decision of 3 June 2002 which remained in force in accordance with the transitional provisions accompanying the entry into force of the new CCrP, and was thus lawful. As regards the applicant’s detention between 31 May and 15 August 2005, the Government pointed out that it had been based on the Krasnoyarsk Regional Court’s extension order of 31 May 2005. In accordance with Article 109 § 13 of the new CCrP, the examination of the matter in the applicant’s absence had been justified by the impossibility to bring him to court whilst he was out of the country. Moreover, the applicant’s counsel was present at this hearing.
1. The applicant’s detention between 29 April and 31 May 2005
28. As regards the applicant’s detention between 29 April and 31 May 2005, the Government stated that it had been based on the prosecutor’s decision of 3 June 2002. However this decision did not set any time-limit for the applicant’s detention. The Court has previously found violations of Article 5 § 1 (c) of the Convention in Russian cases where the domestic courts failed to set a specific time-limit on the applicants’ continued detention (see, Strelets v. Russia, no. 28018/05, § 72, 6 November 2012, with further references). It sees no reason to reach a different conclusion in the present case.
29. There has accordingly been a violation of Article 5 § 1 (c) of the Convention.
2. The applicant’s detention after 31 May 2005
30. The Court further notes that on 31 May 2005 the Krasnodar Regional Court extended the applicant’s detention without his being present at the hearing.
31. The Court reiterates that a detainee should, as a general rule, have the right to participate in a hearing at which his detention is discussed (Lebedev v. Russia, no. 4493/04, § 113, 25 October 2007, with further references). The possibility for a detainee to be heard either in person or through some form of representation features among the fundamental procedural guarantees applied in matters concerning the deprivation of liberty (see Mamedova v. Russia, no. 7064/05, § 89, 1 June 2006; Reinprecht v. Austria, no. 67175/01, § 31, ECHR 2005‑XII, and Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318‑B).
32. The Court notes that by 31 May 2005 the applicant had already spent a month in detention following his return to Russia without having been brought before a judge. This consideration alone enables the Court to conclude that neither the presence of a State-appointed counsel ‒ who moreover had never met or spoken with the applicant ‒ nor any practical difficulties arising in connection with his transfer to Krasnoyarsk could justify his detention being extended in his absence. On this latter point, the Government provided no explanation why a hearing concerning the applicant’s detention pending his transfer could not have been organised at one of the places of transit (see paragraph 23 above).
33. The Supreme Court did nothing to rectify on appeal the shortcomings of the proceedings before the Regional Court. It rejected the applicant’s complaints concerning his absence from the hearing and upheld the extension order issued by the Krasnodar Regional Court (see Shulenkov v. Russia, no. 38031/04, §§ 50-55, 17 June 2010).
34. The Court concludes that the applicant was deprived of an effective review of the lawfulness of his continued detention. It therefore finds that there has been a violation of Article 5 § 4 of the Convention.
35. In the light of this finding, the Court considers that there is no need to examine additionally the lawfulness of the applicant’s detention based on the extension order issued on 31 May 2005 by the Krasnodar Regional Court.
II. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE CONVENTION
36. The applicant further complained of being prevented from seeing his mother for a long period of time starting from 9 February 2006 and of his inability to challenge the judge’s refusal to authorise her visits. He relied on Articles 8 and 13 of the Convention which provide:
Article 8
“1. Everyone has the right to respect for his private and family life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
37. The Government contested that argument, indicating that from 9 February 2006 to 13 March 2007 only four meetings with the applicant had been requested by close relatives. All of them had been granted. The applicant had had visits from his mother on 7 March 2006, 16 May 2006 and 13 March 2007 and from his father on 6 June 2006.
38. The applicant reiterated his complaints without commenting on the specific facts referred to by the Government.
39. It is not disputed by the parties that the applicant had a meeting with his mother on 13 March 2007. As regards the previous period starting on 9 February 2006, the applicant has not produced any material evidence to support his allegations. He limited himself to a general contention that he was not allowed to receive family visits, without specifying the dates on which such visits had been requested and refused; nor did he refer to how many such requests had been lodged and with what authority. He only provided copies of the decisions of 28 December 2006 and of 27 February 2007, which dismissed his complaint for lack of jurisdiction. However, these decisions do not contain any references to the specific facts or dates on which family visits were requested by the applicant or his relatives and refused by the authorities. The applicant failed to produce his application to the Zheleznodorozhny District Court or his cassation appeal. Finally, he has not supplied a detailed account of any attempts to obtain such evidence (compare to Moiseyev v. Russia, no. 62936/00, §§ 73-79, 9 October 2008, and Vlasov v. Russia, no. 78146/01, §§ 30-34, 12 June 2008). By contrast, the Government’ account is complete with references to the specific facts (see paragraph 37 above).
40. In view of the above and in the light of all the material in its possession, the Court finds that this complaint is not supported by appropriate evidence and the available evidential material does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this complaint is unsubstantiated and must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
41. Having regard to that finding, the Court considers that the applicant does not have an “arguable claim” and his complaint does not attract the guarantees of Article 13. This part of the application must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 131, § 52).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
42. Lastly, the applicant complained of the lack of any judicial authorisation for his arrest and detention, of degrading treatment during his arbitrary detention, of the impossibility of having his foreign legal representatives take part in the proceedings, and of the excessive length and unfairness of the criminal proceedings against him. He also complained about the Russian court’s refusals to examine the merits of his complaints. He referred to Articles 3, 5 §§ 1 (f) and 3, 6 §§ 1 and 3, 13 and 14 of the Convention.
43. The Court has examined these allegations, as presented by the applicant. However, in the light of all the material in its possession, and in so far 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 this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. 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
45. The applicant did not submit any claim under this head.
B. Costs and expenses
46. The applicant sought reimbursement of the costs and expenses incurred before the Court. He claimed 300,000 Russian roubles (RUB) (approximately 7,300 euros (EUR)) for the costs and expenses incurred before the Court, including translation costs. He further maintained that it was not possible to provide copies of the supporting documents since they had been destroyed following the expiration of the storage time-limit.
47. The Government submitted that costs and expenses must be both necessarily incurred and properly substantiated.
48. The Court notes that the applicant has not submitted any bills for the alleged costs and fees. It accordingly dismisses his claim.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the applicant’s unlawful detention between 29 April and 31 May 2005, his absence from the extension hearing of 31 May 2005 and the unlawfulness of his ensuing detention pursuant to this detention order admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s unlawful detention between 29 April and 31 May 2005;
3. Holds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant’s absence from the detention hearing of 31 May 2005;
4. Holds that there is no need to examine separately the lawfulness of the ensuing applicant’s detention based on the detention order of 31 May 2005;
5. Dismisses the applicant’s claim for cost and expenses.
Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş AracıHelena Jäderblom
Deputy RegistrarPresident
Full & Egal Universal Law Academy