CASE OF SEGEDA v. RUSSIA

FIRST SECTION

CASE OF SEGEDA v. RUSSIA

(Application no. 41545/06)

JUDGMENT

STRASBOURG

19 December 2013

FINAL

19/03/2014

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

In the case of Segeda v. Russia,

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

Isabelle Berro-Lefèvre, President,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 3 December 2013,

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

PROCEDURE

1. The case originated in an application (no. 41545/06) 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 Igor Dorofeyevich Segeda (“the applicant”), on 27 August 2006.

2. The applicant was represented by Mr R.S. Zakalyuzhnyy, a lawyer practising in Moscow. 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, in particular, that his pre-trial detention had been unreasonably long.

4. On 24 November 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1955 and lives in Khimki in the Moscow region.

6. Since 29 April 2005 the applicant has been the managing director of a limited liability construction company, Print Capital.

7. In June 2005 criminal proceedings were initiated concerning the company’s unauthorised construction of apartment buildings in the Moscow Region. In November 2005 further criminal proceedings were opened concerning fraud related to the sale of flats in those buildings. The two sets of proceedings were subsequently joined.

8. On 4 December 2005 the applicant was arrested on suspicion of fraud.

9. On 6 December 2005 the Meshchanskiy District Court in Moscow authorised the applicant’s pre-trial detention, holding as follows:

“In taking its decision on the [investigator’s] request, the court takes into account the parties’ arguments and the character of the suspect, Mr Segeda, in particular his good references, lack of criminal record, the fact that he has a dependent child, his state of health, and his Category 3 disability. At the same time, the court takes into account that the request was submitted and approved by the appropriate officials in accordance with criminal procedural law. The court also takes into account the gravity of the charges, that Mr Segeda is suspected of having committed a serious criminal offence punishable by more than two years’ imprisonment, [and that he] continues to exercise his responsibilities as managing director of Print Capital and enjoys powers of authority and decision-making and therefore, there are sufficient grounds to believe that if a preventive measure not involving custody were applied, Mr Segeda might abscond, reoffend, intimidate victims and witnesses and other participants ... destroy evidence or otherwise interfere with the proceedings. Furthermore, taking into account that at the present stage of the proceedings the court is not making its assessment of the evidence in the criminal case, it is impossible to apply a more lenient preventive measure in respect of Mr Segeda not involving custody, such as [releasing him subject to] a written undertaking.”

10. On 12 December 2005 the applicant was charged with fraud.

11. In an appeal against the detention order, the applicant’s counsel submitted that there were insufficient grounds to place the applicant in detention. In particular, prior to his arrest the applicant had not interfered with the proceedings and Print Capital, headed by him, had provided the investigating authorities with all the necessary documents. The investigating authorities had not provided any evidence to support their assertion that the applicant was at risk of absconding. The court had not taken into account that the applicant had good references, a permanent place of residence, a job, a dependent child, or that he had been registered as Category 3 disabled.

12. On 21 December 2005 the Moscow City Court upheld the detention order of 6 December 2005.

13. On 26 January 2006 Khimki Town Court in the Moscow Region (“the Town Court”) extended the applicant’s detention until 22 March 2006, holding as follows:

“The present request has been submitted and approved by the appropriate officials and in accordance with criminal procedural law. The court takes into account that Mr Segeda is charged with a serious offence punishable by more than two years’ imprisonment, and therefore if released, he might abscond or obstruct the establishment of truth by destroying documents and other evidence. There are no grounds to cancel or change the preventive measure.”

14. In an appeal against that detention order, the applicant’s counsel submitted that in taking its decision, the Town Court had not taken into account the applicant’s character, the state of his health or the specific circumstances of the case. In particular, there was no evidence to suggest that the applicant might obstruct the establishment of the truth by destroying evidence. In fact, he could no longer do that, because in December 2005 the investigating authorities had carried out a search of Print Capital’s premises, seizing all its financial and other documents; information on the company’s assets and bank accounts had been attached. The Town Court’s reference to the risk of the applicant absconding was not supported by relevant facts either. The applicant had always appeared when summoned by the investigating authorities and had no intention of absconding. He suffered from a heart disease and since his placement in detention his state of health had deteriorated. His poor health would not allow him to abscond or obstruct the proceedings. Lastly, the applicant had good references, a dependent child and elderly parents, and was ready to cooperate with the investigating authorities.

15. On 21 February 2006 the Moscow Regional Court (“the Regional Court”) upheld the detention order of 26 January 2006, finding it lawful and duly reasoned.

16. On 15 March 2006 the Town Court extended the applicant’s detention until 22 May 2006, bringing its duration to five months and eighteen days. The Town Court held as follows:

“Segeda I.D. is charged with a serious offence and if released he might abscond and reoffend. If released, Segeda I.D. might put pressure on witnesses and destroy evidence.

At the same time, the court considers that the followings arguments [submitted by the investigating authorities] deserve attention: the need to obtain the results of comprehensive expert reports on [the company’s] financial and construction activities, a financial and accounting expert report and an expert opinion on technical documentation; the need to question shareholders and officials of the administration of the Khimki district, and the need to establish the exact amount of damage caused by the unlawful construction activity.

The above circumstances do not allow applying in respect of Segeda I.D. a more lenient preventive measure than custody. Therefore the court considers that the request submitted [by the investigating authorities] is duly reasoned, and decides to extend Segeda I.D.’s term of detention until 22 May 2006.”

17. In an appeal against the detention order of 15 March 2006, the applicant’s counsel argued that, in breach of the requirements of Article 5 of the Convention, the investigating authorities had not provided evidence in support of their allegations that the applicant posed the risks to which they referred. He pointed out that the pre-trial investigation was almost completed and there were therefore insufficient grounds to extend the applicant’s detention or to apply another preventive measure.

18. On 3 April 2006 the Regional Court upheld the decision of 15 March 2006, finding it lawful and duly reasoned.

19. On 16 May 2006 the Town Court extended the applicant’s detention until 22 June 2006, thus bringing its total duration to six months and eighteen days. The Court held as follows:

“The request to extend Segeda I.D.’s term of detention beyond six months has been approved by the prosecutor of the constituent entity of the Russian Federation in accordance with criminal procedural law. Since the applicant occupies an important managerial position [in the construction company] he might obstruct the criminal proceedings, in particular, by destroying documents or other evidence.

The maximum period for which Mr Segeda may be detained has not yet expired.

In such circumstances, there are no grounds to change or cancel the preventive measure and therefore the request submitted by [the investigator] should be granted.”

20. The applicant and his counsel appealed against that decision to the Regional Court and referred to the same arguments as in their appeals against the previous detention orders. In addition, they pointed out that a number of expert reports, which were initiated after the seizure of documents on the construction company’s premises, had been finalised and submitted to the applicant for his perusal. All the initial investigative measures involving the participation of the applicant had already been carried out and in the last five months there had been no other investigative measures. Furthermore, the pre-trial investigation had almost been completed. In such circumstances, the applicant could no longer interfere with the proceedings. On the contrary, if released, he could familiarise himself with the evidence in the case more quickly than in the remand prison, where he was held in conditions inappropriate for perusing several volumes of the case file.

21. On 17 May 2006, the applicant was presented with a new version of the charges. This time he was charged with fraud and participation in a criminal organisation.

22. On 25 May 2006 the Regional Court upheld the decision of 16 May 2006.

23. On 14 June 2006 the Town Court extended the applicant’s detention until 22 October 2006, thus bringing its total duration to ten months and eighteen days. The court held as follows:

“... taking into account that Segeda I.D. is charged with serious and particularly serious offences punishable by more than two years’ of imprisonment, if released, he might put pressure on witnesses who had submitted civil claims, and otherwise obstruct the criminal proceedings, and also taking into account that there is a need to carry out investigative measures aimed at finalising the pre-trial investigation and to comply with requirements of Articles 215-220 of [the Code of Criminal Procedure], the court decides that the investigating authorities’ request for extension of the term of detention should be granted.

The court sees no grounds to cancel or change the preventive measure to another type not involving deprivation of liberty.”

24. In an appeal against that decision the applicant and his counsel again repeated their arguments that there were insufficient grounds for extending the applicant’s detention. In addition, they pointed out that the Town Court had not explained why it was impossible to apply another preventive measure.

25. On 30 June 2006 the Regional Court upheld the decision of 14 June 2006.

26. On 13 October 2006 the Town Court extended the applicant’s detention until 4 December 2006, thus bringing its total duration to twelve months. The Town Court held as follows:

“Segeda I.D. is charged with serious and particularly serious offences and if released, he might abscond.

Furthermore, additional time is needed to present all the co-defendants with the final version of the charges, to question them, to inform all the participants of the criminal proceedings of the end of the investigation, to comply with the requirements of Article 217 of [the Code of Criminal Procedure], to draw up the bill of indictment and to present 100 volumes of the case file to the co-defendants and other participants of the criminal proceedings for their perusal.

The Court also takes into account that when the case is sent to the trial court and is prepared for the hearing, the trial court should allow additional time for taking necessary procedural decisions provided for by law and therefore the term of detention of Segeda I.D. should be extended.

The court saw no grounds to apply a more lenient preventive measure, as it was requested by the defence.”

27. In an appeal against that detention order, the applicant and his counsel referred to the same arguments as in their appeal against the previous detention orders and asked for the applicant to be released.

28. On 7 November 2006 the Regional Court upheld the decision of 13 October 2006.

29. On 29 November 2006 the Regional Court, which was now acting as the first-instance court (see paragraph 41 below), extended the applicant’s detention until 22 February 2007, thus bringing its total duration to fourteen months and eighteen days. Its reasoning was as follows:

“It follows from the evidence presented to the court that the criminal investigation is particularly complex, since it involves several episodes of criminal activity and the crimes in question were attributed to a group of individuals, so there is a need to allow additional time of two months and eighteen days to carry out certain investigative measures, and also to comply with the requirements of Articles 216-217 of [the Code of Criminal Procedure].

Taking into account that Segeda I.D. is charged with a number of serious and particularly serious criminal offences, and that according to the charges he had played an active role in the criminal group, the court comes to the conclusion that if released, the accused might abscond, obstruct the proceedings, put unlawful pressure on the victims and witnesses, or commit further criminal offences. Therefore, despite his good references and his state of health, the court sees no grounds to change the preventive measure applied to Segeda I.D. to another type not involving deprivation of liberty, and considers it necessary to extend his detention for another two months and eighteen days.”

30. The applicant’s counsel appealed against that decision to the Supreme Court of the Russian Federation (“the Supreme Court”) and submitted that the applicant was being detained mainly because of the gravity of the charges against him. This was in breach of the requirements of Article 5 of the Convention.

31. On 30 January 2007 the Supreme Court quashed the detention order of 29 November 2006 and remitted the case to the Regional Court for a fresh examination. The Supreme Court held, in particular, that according to the relevant provisions of domestic law, pre-trial detention could be extended beyond twelve months only in exceptional circumstances, whereas the Regional Court in its decision had not indicated any such circumstances to justify extending the applicant’s detention for a longer period. The Regional Court had not supported its reasoning regarding the alleged risk of the applicant absconding, interfering with the proceedings or reoffending by relevant facts, had not examined the applicant’s arguments concerning his poor health, and had not considered the possibility of changing the preventive measure. During the fresh examination the Regional Court should carefully examine all the circumstances of the case, information on the applicant’s character and his state of health, and take a reasoned and duly motivated decision. The Supreme Court further held that the measure of restraint applied to the applicant should remain the same.

32. On 22 February 2007 and after a fresh examination of the case, the Regional Court extended the applicant’s detention until 4 June 2007, bringing its total duration to eighteen months. The Regional Court held as follows:

“In accordance with the requirements of Article 109 § 3 of [the Code of Criminal Procedure] pre-trial detention may be extended beyond twelve months only in exceptional circumstances in respect of individuals charged with particularly serious criminal offences.

The investigating authorities had established that the defendants’ actions, including the actions of Mr Segeda ..., had been of a criminal nature and had been given legal qualification in accordance with the provisions of the Criminal Code in force.

The length of the investigation of the present case was found justified, and therefore the Deputy Prosecutor General of [the Russian Federation] extended the term of investigation to twenty-three months and twenty-eight days.

The volume of the case, which by now has reached 300 volumes, as well as the number of defendants (six people) are evidence not only of the complexity of the investigation of the case and the need to provide additional time for investigation, but also in the court’s view its importance, since 991 persons had been granted victim status in those proceedings ...

In such circumstances, in taking a decision on the extension of Mr Segeda’s pre-trial detention, the opinion of only seven co-investors could not be decisive. Moreover, those persons are challenging the decision to grant them victim status and it appears that they are relying on Mr Segeda continuing his activity in order to discharge his obligations in their respect ...

...

The fact that Mr Segeda suffers from a chronic illness, for which he has been treated both prior to and after his placement in detention, is not an obstacle for his continued detention. It follows from the certificate provided by the head of the hospital ... that the remand prison in which Mr Segeda is detained disposes of the medical equipment necessary to provide him with treatment ...

...

The Court also takes into account that the investigation of the case is at the stage where personal participation of Mr Segeda and his counsel is required for carrying out investigative measures such as presenting him with the amended version of the charges against him and, subsequently, complying with the requirements of Article 217 of [the Code of Criminal Procedure].

If Mr Segeda were released, the authorities would be deprived of the opportunity to take speedy decisions on his participation in the investigating activities, having regard to the state of his health, which he invoked when he earlier refused to take part in the investigating activities, and such a state of affairs would interfere with the proper conduct of the proceedings.

The court considers that the above circumstances, together with the fact that Mr Segeda is charged with active participation in a criminal organisation which is regarded as particularly dangerous for society, and resulted in damage caused to a large number of victims, should be regarded as exceptional circumstances.

...

Taking into account the above, the court concludes that during the investigation of the case it is impossible to apply another, more lenient preventive measure in respect of Mr Segeda ...”

33. In an appeal against that decision, the applicant’s counsel asked the Supreme Court to release the applicant since there were no grounds to detain him any longer.

34. On 17 April 2007 the Supreme Court quashed the detention order of 22 February 2007, finding that in its decision the Regional Court had not indicated and had thus not established the circumstances which made it impossible to apply another preventive measure in respect of the applicant. The Regional Court’s reasons justifying keeping the applicant in detention, namely the gravity of the charges, and the importance, large volume and complexity of the criminal case, were not as such regarded as grounds for preventing another preventive measure from being applied. On the same date the Supreme Court thus released the applicant subject to a written undertaking, finding no exceptional circumstances to justify his continued detention.

35. The parties did not provide any information on the outcome of the criminal proceedings against the applicant.

II. RELEVANT DOMESTIC LAW

Code of Criminal Procedure of the Russian Federation (“the CCrP”) of 2001, in force since 1 July 2002, as worded at the material time

1. Preventive measures

36. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112).

37. 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 during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

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

2. Time-limits for detention “pending investigation”

39. After arrest the suspect is placed in detention “pending investigation”. Detention “pending investigation” must not exceed two months (Article 109 § 1).

40. A judge of a district court or the relevant military court may extend the detention up to six months. Further extensions to up to twelve months may be granted by a judge of the same court only in relation to those accused of serious or particularly serious criminal offences, provided that the criminal case is particularly complex and there are grounds justifying detention (Article 109 § 2).

41. An extension of detention beyond twelve months and up to eighteen months may be authorised by the supreme court of a republic, regional court, city court or a court of an autonomous region or autonomous circuit only in exceptional circumstances in respect of those accused of particularly serious offences, upon an investigator’s request approved by the Prosecutor General or his Deputy (Articles 31 § 3 and 109 § 3).

42. Extension of detention beyond eighteen months is prohibited, and the detainee must be immediately released, unless the prosecution’s request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the CCrP (Article 109 § 4).

3. Time-limits for detention “during trial”

43. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during trial”). The period of detention “during trial” is calculated from the date on which the court receives the criminal case and 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).

4. Proceedings before the appeal court

44. An appeal against a judicial decision ordering or extending detention may be lodged with a higher court within three days. The appeal court must decide on the appeal within three days of its receipt (Article 108 § 11).

45. Appeals against detention orders issued by a district court shall be submitted to the criminal chamber of the supreme court of a republic, regional court, city court or a court of an autonomous region or autonomous circuit. Appeals against detention orders issued by a regional court shall be submitted to the Criminal Chamber of the Supreme Court of the Russian Federation (Article 355 § 3).

THE LAW

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

46. The applicant complained that his pre-trial detention had been unreasonably long and had not been based on relevant and sufficient reasons. He relied on Article 5 § 3 of the Convention, which reads 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.”

A. Admissibility

47. The Court notes from the outset that the Government have not raised an objection as to whether, in the circumstances of the case, the applicant could still claim to be a victim of the violation alleged. The Court will examine this issue of its own motion (see, mutatis mutandis, Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 27, ECHR 2009).

48. In this connection the Court reiterates that that under Article 34 of the Convention it “may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. Redress so afforded must be appropriate and sufficient, failing which a party can continue to claim to be a victim of the violation (see, among others, Burdov v. Russia (no. 2), no. 33509/04, §§ 54-56, ECHR 2009, with further references).

49. Turning to the circumstances of the present case the Court observes that on 30 January and 17 April 2007 the Supreme Court carefully considered the reasons advanced by the Regional Court in the detention orders of 29 November 2006 and 22 February 2007 and quashed them having found that those reasons were not sufficient for extending the applicant’s detention and were not as such regarded as grounds for preventing another preventive measure from being applied (see paragraphs 31 and 34 above). The Court welcomes the approach adopted by the Supreme Court in the present case, which was in conformity with the requirements of Article 5 § 3 of the Convention. However, even assuming that the Supreme Court’s decisions could have been regarded as an acknowledgment of a violation of the applicant’s rights under that provision, this acknowledgement related only to a part of his pre-trial detention. By 30 January 2007 he had already been deprived of his liberty for more than a year. Furthermore, the applicant’s release was ordered only on 17 April 2007 after the quashing of the detention order of 22 February 2007. The Court also notes that the applicant was not awarded any compensation at the national level. Having regard to the above, the Court considers that the applicant can still claim to be a victim in respect of his complaint under Article 5 § 3 of the Convention.

50. The Court further 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. Submissions by the parties

51. The applicant maintained his complaint.

52. The Government submitted that the entire period of the applicant’s detention had been based on “relevant and sufficient” reasons and that the proceedings had been conducted with “special diligence”. The fraud the applicant had been accused of had affected a large number of people. Therefore, the domestic authorities had been under a duty to protect the public interest and in particular, the rights of citizens affected by the crime in question. The domestic courts had carefully examined the arguments submitted by the parties and had concluded that the investigating authorities’ arguments had been convincing, particularly with regard to the dangerousness and gravity of the offence in question, as well as the requirement to protect the public interest. The courts also noted that the evidence in the case was voluminous and complex and on several occasions concluded that the investigative measures had been carried out within a reasonable time.

2. The Court’s assessment

(a) General principles

53. In 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 Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7; Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV; and Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012).

54. Under Article 5 the presumption is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see Neumeister v. Austria, 27 June 1968, p. 37, § 4, Series A no. 8; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006‑X; and Bykov v. Russia [GC], no. 4378/02, § 61, 10 March 2009).

55. The issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention therefore 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 laid down in Article 5 of the Convention (see W. v. Switzerland, 26 January 1993, § 30, Series A no. 254‑A, and Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI).

56. The responsibility falls in the first place on the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the above-mentioned demand of public interest justifying a departure from the rule in Article 5 and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the established facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see Muller v. France, 17 March 1997, § 35, Reports of Judgments and Decisions 1997‑II; Labita, cited above, § 152; and McKay, cited above, § 43).

57. The persistence of a reasonable suspicion that the person arrested has committed an offence is necessary for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207; Yağcı and Sargın v. Turkey, 8 June 1995, § 50, Series A no. 319‑A; and Bykov, cited above, § 64).

(b) Application of those principles in the present case

58. The applicant’s pre-trial detention lasted from 4 December 2005, when he was arrested, until 17 April 2007, when he was released subject to a written undertaking. The total duration of the detention thus amounted to a year, four months and twelve days.

59. The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had been involved in fraud. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify the applicant’s continued detention and whether they displayed “special diligence” in the conduct of the proceedings.

60. The Court observes that the judicial authorities refused to release the applicant, referring mainly to the gravity of the charges against him and the risk that if released he might abscond, reoffend, interfere with the proceedings by intimidating victims and witnesses and other participants of criminal proceedings and by destroying evidence. They occasionally gave other reasons, such as the need to carry out further investigative measures in order to finalise the pre-trial investigation (as in the decisions of 15 March, 14 June, 13 October and 29 November 2006, see paragraphs 16, 23, 26 and 29 above) and the complexity of the criminal investigation (the decision of 29 November 2006, see paragraph 29 above).

61. As regards the courts’ reference to the seriousness of the charges, the Court has repeatedly held that this reason cannot of itself serve to justify long periods of detention. This is particularly true in cases such as the present one, where the characterisation in law of the facts – and thus the sentence faced by the applicant – was determined by the prosecution without judicial review of the issue whether the evidence that had been obtained supported a reasonable suspicion that the applicant had committed the alleged offence (see, among other authorities Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X).

62. The domestic courts justified their assertion that the applicant was at risk of absconding, reoffending or obstructing the proceedings by referring to the severity of the sentence which could be imposed on the applicant. On two occasions they relied on the fact that he continued to occupy his senior managerial position in the construction company and enjoyed powers of authority and decision-making (the decisions of 6 December 2005 and 16 May 2006, see paragraphs 9 and 19 above).

63. Regarding the severity of the sentence which the applicant faced, the Court considers that although it is relevant for the purposes of assessing whether the applicant was at risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Letellier, cited above, § 51; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001; and Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005).

64. In so far as the domestic courts relied on the applicant’s senior managerial position in the construction company, the Court agrees that it was relevant for the purposes of assessing whether he might obstruct the proceedings by destroying evidence and putting pressure on witnesses. However, even assuming that that risk initially existed, after the evidence had been collected and the witnesses had been interviewed, it could no longer justify the applicant’s continued detention.

65. The Court notes that the domestic courts did not refer to any other factors or evidence which could have substantiated the assertion that the applicant might abscond, reoffend or obstruct the proceedings, but simply accepted the investigators’ allegations that the applicant was likely to do so. They gave no heed to important and relevant facts supporting the applicant’s requests for release and reducing the risk that he would abscond, reoffend or interfere with the proceedings. Among those were his serious state of health, his argument that he had never changed his place of residence, that he had not attempted to escape, that he had strong family ties, no previous criminal record, and that there was nothing to suggest that he had ever tried to destroy evidence or to contact the victims or witnesses in the course of the criminal proceedings. In these circumstances, the Court cannot but conclude that the domestic courts failed to assess the applicant’s personal situation and to give specific reasons, supported by evidence, for holding him in custody. A similar conclusion was reached by the Supreme Court on 30 January and 17 April 2007 (see paragraphs 31 and 34 above). In particular, the Supreme Court held that the detention orders did not contain any reference to evidence or circumstances which could have warranted the applicant’s detention.

66. In so far as the domestic courts justified the applicant’s continued detention by the need to carry out certain investigative measures, the Court considers that a mere reference to the need to carry out investigative measures is not as such a relevant consideration justifying the continued detention (see also Shteyn (Stein) v. Russia, no. 23691/06, § 117, 18 June 2009 and Valeriy Samoylov v. Russia, no. 57541/09, § 123, 24 January 2012).

67. As regards the complexity of the case, the Court agrees with the conclusion of the Supreme Court in its decision of 17 April 2007 that the large volume of evidence and the complexity of the criminal case cannot as such be regarded as grounds for preventing the application of another preventive measure.

68. In these circumstances, the Court cannot but conclude that the domestic courts failed to assess the applicant’s personal situation and to give specific reasons, supported by evidence, for holding him in custody. A similar conclusion was reached by the Supreme Court of the Russian Federation on 30 January and 17 April 2007 (see paragraphs 31 and 34 above).

69. The Court further emphasises that when deciding whether a person should be released or detained, the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005 and Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000). In the present case, in most of their decisions the domestic courts held that they saw no grounds to cancel the preventive measure or to apply a more lenient measure. However, they omitted to set out why such alternatives would not have ensured that the trial followed its proper course.

70. Having regard to the above, the Court considers that by failing to address specific facts or to properly consider alternative preventive measures and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of more than a year and four months. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

71. There has therefore been a violation of Article 5 § 3 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

72. Lastly, the Court has examined the other complaints submitted by the applicant. Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it 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 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73. 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

74. The applicant claimed 119,000 Russian roubles (RUB) for the loss of his earnings as managing director of Print Capital during the period of his detention. In support of those claims, he provided the Court with a certificate issued by the company stating that between 29 April 2005 and 1 October 2007 he had occupied the position of managing director and was paid a monthly salary of RUB 7,000. The applicant further claimed RUB 25,400 in respect of medical expenses, which he had to pay out after his release from detention for treatment of conditions which allegedly became acute during his detention and were not properly treated because the level of medical assistance available in the detention facilities had been inadequate.

75. The Government submitted that if the Court found a violation of the Convention in the present case, such a finding would constitute adequate just satisfaction. Regarding the applicant’s claims for loss of earnings, the Government pointed out that according to the certificate provided by the applicant’s employer, during the entire period of his detention, the applicant was still employed and being paid. The Government further argued that the applicant had not provided any evidence to prove that his state of health had deteriorated as a result of his detention.

76. The Court agrees with the Government that the applicant did not provide any evidence that he did not actually receive his salary during the period of his detention. Therefore, it rejects his claim in this part. Furthermore, the Court does not discern any causal link between the violation found and the claims related to reimbursement of the applicant’s medical expenses. Therefore, it rejects the applicant’s claims under that head also.

B. Costs and expenses

77. The applicant also claimed RUB 61,000 for costs and expenses incurred before the domestic courts and the Court.

78. The Government considered that the applicant’s claims should be examined in accordance with the Court’s practice.

79. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,600 covering costs under all heads, plus any tax that may be chargeable to the applicant on that amount.

C. Default interest

80. 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 complaint concerning the length of the applicant’s pre-trial detention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. 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, EUR 1,600 (one thousand six hundred euros), in respect of costs and expenses, plus any tax that may be chargeable to the applicant on that amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

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

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

Done in English, and notified in writing on 19 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident

Full & Egal Universal Law Academy