CASE OF ROMAN PETROV v. RUSSIA

THIRD SECTION

CASE OF ROMAN PETROV v. RUSSIA

(Application no. 37311/08)

JUDGMENT

STRASBOURG

15 December 2015

FINAL

15/03/2016

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

In the case of Roman Petrov v. Russia,

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

Luis López Guerra, President,
Helena Jäderblom,
George Nicolaou,
Johannes Silvis,
Dmitry Dedov,
Branko Lubarda,
Pere Pastor Vilanova, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 24 November 2015,

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

PROCEDURE

1. The case originated in an application (no. 37311/08) 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 Roman Nikolayevich Petrov (“the applicant”), on 10 July 2008.

2. The applicant was represented by Mr Ye. Solovyev, a lawyer practising in Cheboksary. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicant alleged, in particular, that his pre-trial detention had been unlawful and excessively long, and that his appeal against one of the detention orders had not been considered “speedily”.

4. On 26 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1978 and is serving a prison sentence in the Nizhniy Novgorod region.

A. Criminal proceedings against the applicant

6. On 27 June 2007 the applicant was arrested on suspicion of having produced and distributed child pornography.

7. On 29 June 2007 the Leninskiy District Court of Cheboksary (“the District Court”) authorised the applicant’s detention pending investigation. In particular, the court reasoned as follows:

“... [the applicant] is suspected of a serious offence ... entailing a custodial sentence exceeding two years. Regard being had to the circumstances of the case concerning [the distribution of child pornography], the [applicant’s] character, and the fact that he applied for a passport, the court considers that if at liberty [the applicant] might abscond or interfere with the administration of justice by way of communicating by e‑mail with the persons who purchased pornographic materials from him. Accordingly, the court considers that it is necessary to remand [the applicant] in custody. The court does not consider it possible to apply any other preventive measure.”

8. On 22 August 2007 the District Court extended the applicant’s detention until 9 October 2007 noting as follows:

“... [the applicant] is charged with a serious offence ... entailing a custodial sentence exceeding two years. Regard being had to the circumstances of the case, the [applicant’s] character, the fact that he previously lived in Lithuania and that he worked for a considerable period of time in law enforcement and has extensive connections with the police, the court considers that, if at liberty, [the applicant] might abscond or interfere with the administration of justice ... The court does not consider it possible to apply any other preventive measure.”

9. On 3 October 2007 the District Court extended the applicant’s pre‑trial detention until 9 November 2007 noting that the circumstances underlying the applicant’s detention pending investigation were still pertinent. On 12 October 2007 the Supreme Court of the Chuvash Republic upheld the court order of 3 October 2007 on appeal.

10. On 6 November 2007 the District Court extended the applicant’s pre-trial detention until 9 December 2007 referring to the seriousness of the charges against him and his prior service in law enforcement. On 26 November 2007 the Supreme Court upheld that court order on appeal.

11. On 6 and 24 December 2007 the Moskovskiy District Court of Cheboksary extended the applicant’s pre-trial detention until 27 December 2007 and 27 January 2008 respectively. The court noted that the circumstances underlying the applicant’s detention pending investigation were still pertinent. On 6 January 2008 the Supreme Court upheld the court order of 24 December 2007 on appeal.

12. On 25 January 2008 the District Court extended the applicant’s detention until 27 February 2008. The court noted as follows:

“Regard being had to the ongoing investigation, the seriousness of the charges against [the applicant] ... and the fact that he might abscond, put pressure on the victim and witnesses or otherwise interfere with the administration of justice, the court considers it necessary ... to extend the [applicant’s] pre-trial detention ...”

13. On 4 February 2008 the Supreme Court quashed the court order of 25 January 2008 on appeal, citing the applicant’s exclusion from the court hearing, and remitted the matter for fresh consideration. The court ordered the applicant’s release dismissing the argument that the applicant “might abscond or interfere with the administration of justice” as unsubstantiated. It also noted that, in contravention of the rules of criminal procedure, the detention hearing of 25 January 2008 had been held without the applicant’s legal counsel being present as he had not been duly notified of the time and place.

14. On 8 February 2008 the investigator in charge of the applicant’s case reclassified the charges against the applicant and ordered him to be detained for forty-eight hours. On 10 February 2008 the applicant was released.

15. On 12 February 2008 the District Court again authorised the applicant’s detention pending investigation until 27 February 2008. The court noted as follows:

“Regard being had to the ongoing investigation ..., the seriousness of the charges against [the applicant] ... and the fact that he might abscond, put pressure on the underage victim, who, owing to his age and medical condition, might be influenced by an adult, the court considers it necessary to extend the [applicant’s] pre-trial detention ...”

16. On 22 February 2008 the Supreme Court upheld the court order of 12 February 2008 on appeal.

17. On an unspecified date the applicant was charged with several counts of child molestation.

18. On 26 February 2008 the District Court extended the applicant’s pre‑trial detention until 27 March 2008 with reference to the seriousness of the charges, and the risk of his absconding or putting pressure on the underage victim of the crime. On 14 March 2008 the Supreme Court upheld the court order of 26 February 2008 on appeal.

19. On 27 March 2008 the applicant was released upon expiry of the statutory maximum period for pre-trial detention.

20. On 28 March 2008 the District Court dismissed the investigator’s application for the applicant’s detention pending trial and ordered the latter to post bail in the amount of 100,000 Russian roubles (RUB). On 31 March 2008 the applicant’s father put up that amount as bail.

21. On an unspecified date the District Court received the case file and fixed the preliminary hearing for 25 July 2008.

22. On 25 July 2008 the District Court found that the prosecutor had failed to duly authorise the extension of the period of detention pending the investigation of the case and returned the case file to the prosecutor’s office. On 4 September 2008 the Supreme Court quashed that decision and remitted the case to the District Court for fresh examination.

23. On 2 October 2008 the District Court fixed the trial for 15 October 2008.

24. On 12 April 2010 the District Court granted the prosecutor’s request to remand the applicant in custody pending trial. In particular, the court reasoned as follows:

“In the course of the trial ... since 1 April 2009 [the applicant] has wilfully and frivolously interfered with the administration of justice.

Even though [the applicant] was able to participate in the court hearings, he did not appear in court during the periods from 17 to 31 December 2009 and from 13 to 22 January 2010. Nor did [the applicant] appear in court from 6 to 9 April 2010.

The fact that [the applicant] was fit to attend the hearings is confirmed by the statements made by the chief physician of [the municipal hospital] on 15 January ... and 7 April 2010 ...

Furthermore, it appears from the statement made by O.N., the father of the underage victim, A.N., also signed by A.N. and received by the court on 9 April 2010, that [the applicant] constantly put pressure on their family. Without explanation, [the applicant] made them sign various documents and prevented them from participating in the court hearings. They asked the court to protect them from [the applicant].

The court perceives with certain scepticism the written statement made by A.N., his parents and their counsel ... whereby they do not agree with the [applicant’] detention pending trial. The court takes into account that [the applicant] lives next door to the underage victim and can put pressure on [him] and his parents.

As can be seen from the case file, [the applicant] is charged with [serious offences] entailing a custodial sentence of between two and fifteen years’ imprisonment.

Regard being had to the seriousness of the charges and to the fact that [the applicant] lives next door to the underage victim and can put pressure on [him] and his parents, the court considers that, if at liberty, [the applicant] might interfere with the administration of justice and put pressure on [A.N.] ...”

25. According to the Government, on 14 April 2010 the applicant lodged an appeal against the decision of 12 April 2010. On 16 April 2010 the District Court granted the applicant’s request to study the case file in order to prepare for the appeal hearing. On 20 May 2010 the Supreme Court upheld the decision of 12 April 2010 on appeal.

26. On 5 July 2010 the District Court found the applicant guilty of several counts of production and distribution of child pornography, child rape and molestation and sentenced him to twelve years’ imprisonment.

27. On 27 October 2010 the Supreme Court upheld the applicant’s conviction on appeal.

28. On 5 December 2012 the Bor Town Court of the Nizhniy Novgorod Region granted the applicant’s request for commutation of his prison sentence in view of the latest amendments to the Russian Criminal Code and reduced the applicant’s sentence by one year.

29. On 26 February 2013 the Nizhniy Novgorod Regional Court upheld the decision of 5 December 2012 on appeal.

B. Civil proceedings initiated by the applicant

30. On 12 April 2011 the applicant brought a claim against the Ministry of Finance of the Russian Federation for the authorities’ failure to determine the criminal charges against him within a reasonable time.

31. On 26 May 2011 the Supreme Court of the Chuvash Republic dismissed the applicant’s claims. The court noted that the criminal proceedings against the applicant had lasted three years, four months and twelve days. With reference to the particular circumstances of the case and relying on the relevant criteria of the Court’s case-law, the court considered such a period reasonable. On 7 October 2011 the judgment of 26 May 2011 was upheld on appeal.

C. Conditions of detention

32. Pending investigation and trial the applicant was detained in a temporary detention centre, remand prison no. IZ-21/1 and a psychiatric hospital in Cheboksary during the following periods: from 27 June 2007 to 4 February 2008, from 12 February to 27 March 2008, from 12 April to 5 November 2010. According to the applicant, the conditions of his detention were inhuman and degrading.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Russian Code of Criminal Procedure (“CCrP”)

33. “Preventive measures” include: an undertaking not to leave the place of residence or alleged crime; a statement of guarantee; bail; house arrest; and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).

34. 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, reoffend, threaten the witnesses or other parties to the proceedings, destroy evidence or otherwise interfere with the administration of justice (Article 97). The seriousness of the charges, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances must also be taken into account (Article 99).

35. Detention may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by more than three years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

36. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during trial” (со дня поступления уголовного дела в суд и до вынесения приговора)). The period of detention “during trial” is calculated from the date on which the court receives the criminal case file to the date on which the judgment is adopted. Detention “during trial” may not normally exceed six months, 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).

B. Ruling no. 245-O-O of 20 March 2008 by the Constitutional Court of the Russian Federation

37. In ruling no. 245-O-O of 20 March 2008, the Constitutional Court of the Russian Federation noted that it had reiterated on several occasions (rulings nos. 14-P, 4-P, 417-O and 330-O of 13 June 1996, 22 March 2005, 4 December 2003 and 12 July 2005) that a court, when taking a decision under Articles 100, 108, 109 and 255 of the CCrP placing an individual in detention or extending a period of an individual’s detention, was under an obligation, inter alia, to calculate and specify the length of that detention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

38. The applicant complained under Article 5 §§ 1, 3 and 4 of the Convention that the order of 12 April 2010 had not been lawful. In particular, he submitted that the relevant court order had failed to specify a period for his detention. The Court will examine the complaint under Article 5 § 1 (c), which, in so far as relevant, 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[.]”

39. The Government conceded that, in contravention of the rules of criminal procedure, the court had failed to specify the period of the applicant’s detention. However, in their view, such an omission had not amounted to an infringement of the applicant’s rights given that the period of detention had been offset against the prison sentence subsequently imposed.

40. The applicant maintained his complaint.

A. Admissibility

41. 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

42. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, among numerous other authorities, Benham v. the United Kingdom, 10 June 1996, §§ 40-41 in fine, Reports of Judgments and Decisions 1996‑III).

43. Turning to the circumstances of the present case, the Court observes that on 12 April 2010 the District Court remanded the applicant in custody during the trial. The Court accepts that the District Court acted within its powers. However, the Court cannot but note that the District Court did not indicate a defined period for the applicant’s detention.

44. In this connection the Court takes cognisance of the interpretation of the applicable rules of criminal procedure provided by the Constitutional Court of Russia wherein it unequivocally stated that the law required that, when deciding on the defendant’s detention, the court should specify its length (see paragraphs 37 above).

45. The Court further notes that it has already examined similar complaints in a number of cases against Russia and found a violation of Article 5 § 1 of the Convention on account of the national judicial authorities’ failure to specify the period of the applicant’s pre-trial detention. In its opinion, such failure amounted to a “gross and obvious irregularity” capable of rendering the applicant’s ensuing detention arbitrary and therefore “unlawful” within the meaning of Article 5 § 1 (see, for example, Logvinenko v. Russia, no. 44511/04, §§ 35-39, 17 June 2010, and Fedorenko v. Russia, no. 39602/05, §§ 52-57, 20 September 2011).

46. Having regard to the above, the Court sees no reason to reach a different conclusion in the present case. Consequently, the Court finds that the applicant’s detention on the basis of the court order of 12 April 2010 was not “in accordance with a procedure prescribed by law”. There has accordingly been a violation of Article 5 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

47. The applicant complained of the excessive length of his pre-trial detention. He relied on Article 5 § 3 of the Convention, which reads, in so far as relevant, 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.”

48. The Government considered that the length of the applicant’s pre-trial detention had been reasonable. In addition to the seriousness of the charges against the applicant, the domestic courts took into account the specific circumstances of his case. In particular, the decisions to remand the applicant in custody and/or to extend his detention had been justified in view of his behaviour. He had tried to apply for a passport and had put pressure on witnesses. Furthermore, once the grounds underlying his detention had no longer been relevant, the applicant had been released pending trial. Placing the applicant in detention again had been necessary in view of his attempts to interfere with the administration of justice.

49. The applicant maintained his complaint. He considered that the domestic courts had referred to fictitious and far-fetched circumstances when remanding him in custody or extending his pre-trial detention.

A. Admissibility

50. The Court reiterates that, generally speaking, when determining the length of detention pending trial under 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, or, possibly, when the applicant is released from custody pending criminal proceedings against him (see, among other authorities, Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012).

51. In the present case the Court observes that the applicant was detained during multiple periods pending the criminal proceedings against him: (1) from 27 June 2007 to 4 February 2008; (2) from 8 to 10 February 2008; (3) from 12 February to 28 March 2008; and (4) from 12 April 2010 to 5 July 2010. Accordingly, it was incumbent on the applicant to bring the complaint in respect of each period of detention within six months of his release (see Idalov, cited above, § 134).

52. Regard being had to the above, the Court considers, that by lodging the complaints (1) on 10 July 2008 in respect of the detention periods from 27 June 2007 to 4 February 2008, from 8 to 10 February 2008, and from 12 February to 28 March 2008; and (2) on 4 November 2010 in respect of the detention period from 12 April to 5 July 2010, the applicant complied with the six-month rule.

53. 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

1. Period to be taken into consideration

54. As noted above, the applicant was detained (1) from 27 June 2007 to 4 February 2008; (2) from 8 to 10 February 2008; (3) from 12 February to 28 March 2008; and (4) from 12 April 2010 to 5 July 2010. Given that at all times the applicant was in detention pending the same set of criminal proceedings against him, the Court will examine these detention periods globally. Accordingly, it concludes that the total length of the applicant’s detention amounted to approximately eleven and a half months.

2. Whether there were relevant and sufficient reasons justifying the applicant’s detention

55. Under the Court’s case-law, the issue of whether a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its particular features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty (see, among other authorities, W. v. Switzerland, 26 January 1993, § 30, Series A no. 254‑A, and Pantano v. Italy, no. 60851/00, § 66, 6 November 2003).

56. The Court is prepared to accept that the applicant’s detention during the multiple periods between 27 June 2007 and 28 March 2008 may have been warranted by the risk of the applicant’s absconding or interfering with the administration of justice. The domestic courts duly examined the particular circumstances of the applicant’s case, namely his ties with another State and prior service in law enforcement, substantiating their finding that the applicant might abscond or interfere with the administration of justice.

57. Similarly, the Court is satisfied that the domestic authorities furnished relevant and sufficient reasons when deciding to detain the applicant pending trial from 12 April to 5 July 2010. In this connection, the Court notes that the District Court revoked the applicant’s bail and remanded him in custody owing to his failure to appear before the trial court on several occasions and his attempts to influence the underage victim of the crime the applicant was charged with.

58. Regard being had to the above and finding no indication of a lack of “special diligence” in the conduct of the proceedings, the Court concludes that there has accordingly been no violation of Article 5 § 3 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

59. The applicant complained that his appeal against the detention order of 12 April 2010 had not been considered “speedily”. He relied on Article 5 § 4 of the Convention, which reads 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.”

60. In the circumstances of the case and in view of the Court’s earlier finding that the applicant’s detention on the basis of the court order of 12 April 2010 was not lawful, the Court does not consider it necessary to examine separately the applicant’s grievances under Article 5 § 4 of the Convention (compare Nasakin v. Russia, no. 22735/05, §§ 86-87, 18 July 2013).

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

61. Lastly, the applicant complained of the conditions of his detention, the unlawfulness of his arrest and the unfairness of the criminal proceedings against him. He referred to Articles 3, 5, 6 and 13 of the Convention.

62. Having regard to all the material in its possession, and in so far as they fall within its competence, the Court finds that the above complaints 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 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

63. 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

64. The applicant claimed 60,000 euros (EUR) in respect of non-pecuniary damage.

65. The Government considered that the applicant had failed to provide detailed information as to the nature of the damage he had sustained or to show a causal link between that damage and the violations alleged. Consequently, they argued that no award should be made to the applicant.

66. The Court considers that the applicant must have experienced anguish and suffering resulting from the period he had been unlawfully detained, and that this would not be adequately compensated by the finding of a violation alone. Making its assessment on an equitable basis and having regard to the particular circumstances of the case, it awards him EUR 20,000 under that head, plus any tax that may be chargeable on that amount.

B. Costs and expenses

67. The applicant also claimed 172,830 Russian roubles (RUB) (approximately EUR 4,238 at the relevant time) for the costs and expenses incurred before the domestic courts and RUB 182,861.80 (approximately EUR 4,484 at the relevant time) for those incurred before the Court. In particular, he claimed RUB 180,000 in respect of legal fees and RUB 2,861.80 in respect of postal expenses.

68. The Government considered the applicant’s claims excessive. They further noted that the costs and expenses incurred by the applicant before the domestic courts had been, to a major extent, in connection with his defence in the criminal proceedings against him. Besides, the applicant had been represented by seven lawyers which, in the Government’s opinion, had not been necessary.

69. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads.

C. Default interest

70. 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,

1. Declares the complaints concerning the lawfulness, length and review of the applicant’s detention 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 detention authorised by the court order of 12 April 2010;

3. Holds that there has been no violation of Article 5 § 3 of the Convention;

4. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention;

5. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsLuis López Guerra
RegistrarPresident

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