FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 62208/00
by Vladimir Madestovich LABZOV
against Russia
The European Court of Human Rights (First Section), sitting on 28 February 2002 as a Chamber composed of
MrC.L. Rozakis, President,
MrsF. Tulkens,
MrG. Bonello,
MrE. Levits,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner, judges,
and Mr S. Nielsen, Deputy Section Registrar,
Having regard to the above application introduced on 8 June 2000 and registered on 25 October 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, Vladimir Madestovich Labzov, is a Russian national. He was born in 1956 and lives at Cheboksary. He is represented before the Court by his wife Tatyana Albertovna Labzova.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and detention on remand
On 11 January 2000 criminal proceedings were instituted against the applicant on charges of fraudulent mismanagement of a company and misappropriation of its assets. Subsequently, the charge was amended to one of embezzlement.
On 5 April 2000 a warrant was issued by an investigating officer for the applicant’s arrest. The warrant was confirmed on 10 April 2000 by the Public Prosecutor of the Cheboksary Region of the Chuvash Republic. On the same day the applicant was arrested, formally charged with the offence and taken into custody.
The applicant describes the events that took place on 10 April 2000 in the investigating officer’s office as follows. He claims that at least seven police officers were present in the room and exerted psychological and physical pressure on him. They made him replace his chosen lawyer with one they suggested. The applicant was prevented from taking written notes and from submitting observations on the documentary evidence. His request to be brought before a prosecutor was greeted with laughter and insults. His application for judicial review of the lawfulness of his arrest was torn by the investigating officer. He was not served with a copy of the charge. When the applicant fell ill, he asked for an ambulance, but his request was ignored.
Half-conscious, the applicant was taken by four members of the special police force to the temporary detention unit of the Interior Department of the Chuvash Republic (изолятор временного содержания при МВД Чувашской Республики). As his health deteriorated overnight, he was transferred on 11 April 2000 to the hospital located on the premises of Prison UL 34/4 of the Prison Department of the Ministry of Justice of the Chuvash Republic (исправительно-трудовая колония ЮЛ 34/4 Управления исполнения наказаний Министерства юстиции Республики Чувашия). He remained there until 16 May 2000. During his stay a heart condition was diagnosed. Subsequently, the applicant was transferred to the Tsivilsk remand centre SIZO 15/2 (следственный изолятор СИЗО 15/2 г. Цивильска).
2. The judicial review of the applicant’s detention and his subsequent release
On 12 April 2000 the applicant filed an application for judicial review of his detention. His lawyer filed a similar application. The prison administration forwarded the application to the court on 19 April 2000, outside the twenty-four-hour time-limit laid down in the Code of Criminal Procedure (Article 220-1, § 2). On 20 April 2000 the Kalininskiy District Court of Cheboksary (Калининский районный суд г. Чебоксары) declared the application inadmissible. The court considered that, whereas provision is made for judicial review of pre-trial detention where a person is confined in a temporary detention unit, a remand centre, or a prison specifically designed for convicted and remand prisoners, the applicant was detained in a prison hospital, which did not fall into any of those categories.
The decision was served on the applicant on 26 April 2000, and he and his lawyer appealed on the ground that although he was technically held in a prison hospital, it had all the features of a prison, such as bars on windows, locked doors, guards, two rows of high-voltage electrified barbed wire fencing, guard dogs and watchtowers.
His appeal against that decision was dismissed on 1 June 2000 by the Criminal Chamber of the Supreme Court of the Chuvash Republic (Судебная коллегия по уголовным делам Верховного Суда Чувашской Республики), which upheld the findings of the lower court regarding the nature of the prison hospital.
On 14 July 2000 the Head of the Prison Department of the Ministry of Justice of the Chuvash Republic informed the applicant’s lawyers that the prison hospital could in fact be used for keeping remand prisoners.
Upon the applicant’s transfer from the prison hospital to the Tsivilsk remand centre SIZO 15/2 on 16 May 2000, a new application for release was made. It was dismissed on 19 May 2000 by the Tsivilskiy District Court of the Chuvash Republic (Цивильский районный суд Чувашской Республики), and, on appeal, by the Supreme Court of the Chuvash Republic on 8 June 2000 on the grounds of the seriousness of the charge. The applicant’s petition to have his case examined on supervisory review was also unsuccessful.
The applicant’s two lawyers lodged a fresh application for his release on 16 June 2000. On 27 June 2000 the Tsivilskiy District Court declared the application inadmissible because the lawfulness of the applicant’s detention had already been the subject of judicial review (in the proceedings which ended with the decision of the Supreme Court of the Chuvash Republic of 8 June 2000). This finding was upheld on appeal by the Supreme Court of the Chuvash Republic on 13 July 2000.
From 16 June until 22 July 2000 the applicant had to be hospitalised again. Although the medical report stated that the applicant needed special treatment for his heart, on 22 July 2000 the applicant was returned to the remand centre, where he was placed in a special “quarantine” cell. The applicant claims the conditions of the cell were especially bad: eighty inmates had to share a half-flooded basement room measuring thirty square metres. The applicant’s suffering was exacerbated by excessive humidity and a lack of ventilation and vital medicines.
On 31 July 2000 the criminal charge against the applicant was dropped under amnesty legislation passed by the national legislature on 26 May 2000. The applicant was released the next day.
3. The applicant’s representation by his wife
On 11 April 2000 the applicant’s wife, who was authorised by the applicant to act on his behalf, lodged a complaint about the detention with the Kalininskiy District Court of Cheboksary, which on 16 April 2000 refused to deal with the complaint because it had been introduced by a close relative of the applicant rather than by the applicant in person or his lawyer. Although the applicant’s wife was permitted to act for the defence at the trial if it ever took place, she was precluded from participating in the earlier proceedings, since under the national rules of criminal procedure, persons who are not members of the bar are not entitled to act as advocates at the pre-trial stage. It appears that no appeal was lodged against the decision of 16 April 2000.
B. Relevant domestic law
Article 220-2 of the Code of Criminal Procedure provides that the court with jurisdiction to hear an application for judicial review of pre-trial detention shall be the court for the area where the prisoner is held.
The Law on the Detention of Remand Prisoners states that persons suspected of or charged with criminal offences may be detained in investigative isolation units, remand centres and, in some cases, in prison facilities where convicted prisoners are held.
Article 220-1 of the Code of Criminal Procedure provides that judicial review of detention on remand may only be initiated by the person detained, his lawyer or his legal representative. In accordance with Article 47 of the Code, relatives may not be permitted to act as advocates at the pre-trial stage of criminal proceedings.
Section 8 (b) of the Amnesty Act of 26 May 2000 provides that persons suffering from disabilities of classes I and II shall be amnestied in respect of alleged offences committed before the Act came into force.
C. Reservation of the Russian Federation
The instrument of ratification of the Convention deposited by the Russian Federation on 5 May 1998 contains the following reservation:
“In accordance with Article 64 of the Convention, the Russian Federation declares that the provisions of Article 5 paragraphs 3 and 4 shall not prevent ... the temporary application, sanctioned by the second paragraph of point 6 of Section Two of the 1993 Constitution of the Russian Federation, of the procedure for the arrest, holding in custody and detention of persons suspected of having committed a criminal offence, established by Article 11 paragraph 1, Article 89 paragraph 1, Articles 90, 92, 96, 96-1, 96-2, 97, 101 and 122 of the RSFSR Code of Criminal Procedure of 27 October 1960, with subsequent amendments and additions...”
Article 11, paragraph 1 - Personal inviolability
“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor’s order...”
Article 89, paragraph 1 - Application of preventive measures
“When there are sufficient grounds for believing that an accused person would evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to ensure execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor and the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place; a personal guarantee or a guarantee by a public organisation; placing in custody.”
COMPLAINTS
1. Under Article 5 § 3 of the Convention the applicant complains that he was not brought before a judge in order to confirm his detention.
2. In addition, the applicant challenges his detention as an arbitrary and unduly harsh restrictive measure with reference to Articles 5 and 6 of the Convention and Article 1 of Protocol No. 4 to the Convention. He claims, inter alia, that he had no intention of absconding or engaging in criminal activities and was in any event prevented from doing so by poor health. He adds that the criminal charge against him was unfounded.
3. Invoking Article 5 §§ 3 and 4 of the Convention the applicant complains of the courts’ refusal to process the application for release he made when in hospital and of the obstacles that prevented communication of his applications to the courts. Specifically, he submits that the application for release of 12 April 2000 was not transmitted to the court until 19 April, in spite of the twenty-four-hour time-limit laid down in the Code of Criminal Procedure.
4. Further, under Article 6 § 3 (c) the applicant complains of the domestic courts’ refusal to review the application for release made by his wife.
5. Under Articles 2 and 3 of the Convention the applicant complains about the poor conditions in the prison where he was held and which, he says, were life-threatening.
6. The applicant alleges under Articles 6 § 2 and 7 § 1 that the fact that the charge against him was dropped under an amnesty law constitutes a conviction without due process of law and deprives him of the right to claim compensation under Article 5 § 5.
7. Finally, under various Convention provisions, inter alia, Articles 1, 2, 6 § 3 (a), 7 § 1, 8, 10 and 13 the applicant complains about alleged procedural irregularities during the investigation and challenges the merits of the charge.
THE LAW
1. The applicant complains under Article 5 § 3 of the Convention that he was not brought before a judge once detained. Article 5 § 3, insofar as relevant, reads as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power...”
The Court first notes Russia’s reservation in respect of the provisions of Article 5 § 3 of the Convention. It observes that the reservation refers, inter alia, to Articles 11 § 1 and 89 § 1 of the Code of Criminal Procedure, under which a person may be detained on a decision of a public prosecutor without there being any requirement for judicial supervision of the detention.
The Court must examine whether the reservation satisfies the requirements of Article 57 of the Convention (former Article 64), which enables a High Contracting Party to make a reservation in respect of “any particular provision of the Convention”.
To be valid, a reservation must satisfy the following conditions: (1) it must be made at the time the Convention is signed or ratified; (2) it must relate to specific laws in force at the time of ratification; (3) it must not be of a general character; and (4) it must contain a brief statement of the law concerned.
As regards the first and second conditions, the Court notes that the reservation was made in the instrument of ratification and framed to exclude from the scope of Article 5 §§ 3 and 4 of the Convention the temporary application of specific provisions of the Code of Criminal Procedure mentioned in the text of the reservation concerning the procedure for the arrest, holding in custody and the detention of persons suspected of having committed a criminal offence.
By “reservation of a general character” in Article 57 is meant a reservation couched in terms that are too vague or broad for it to be possible to determine their exact meaning and scope (see the Belilos v. Switzerland judgment of 29 April 1988, Series A no. 132, p. 26, § 55).
The Court considers that the present reservation is couched in sufficiently precise terms as it refers to a particular area of law and specific provisions which are excluded from the scope of a particular Convention Article (Article 5 §§ 3 and 4 of the Convention).
As to the requirement that the reservation contain a brief statement of the law concerned, the Court notes that the text of the provisions concerned were attached to the reservation.
The reservation thus complies with the requirements of Article 57 of the Convention.
Having regard to the terms of the reservation, Russia was therefore under no Convention obligation to guarantee the applicant the right to be brought promptly before a judge or other officer authorised by law to exercise judicial power for the purpose of reviewing the legality of the custodial measure.
It follows that this complaint is incompatible ratione materiae with the provisions of the Convention pursuant to Article 35 § 3 of the Convention.
2. The applicant also complains that his detention was arbitrary, unjustified and based on insufficient evidence. He refers to Articles 5, 6 and 13 of the Convention, and Article 1 of Protocol No. 4 to the Convention. The Court will examine this complaint under Article 5 § 1 of the Convention which, insofar as relevant, reads:
“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;”
The requirement that the suspicion must be reasonable forms an essential element of the safeguard against arbitrary arrest and detention. Having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32).
As to the level of “suspicion”, Article 5 § 1 (с) of the Convention does not presuppose that the investigating authorities should have obtained sufficient evidence to bring charges, either at the time of the arrest or while the arrested person is in custody. The object of questioning during detention under Article 5 § 1 (с) of the Convention is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation. The existence or not of a reasonable suspicion in a concrete instance depends on the particular facts (see. the Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, §§ 55 and 57).
The Court recalls that the purpose of the detention was to bring the applicant before the competent legal authority on suspicion of having committed an offence. The Court notes that the detention order of 5 April 2000 referred to evidence gathered in the course of the investigation whereby it had been established that the applicant had fraudulently come into possession of machinery that belonged to his company. That order was later reviewed by the court competent to deal with the appeal against the prosecutor’s decision. There is nothing in the reasoning of the domestic authorities which could be regarded as arbitrary or unreasonable, or as lacking a factual basis.
In conclusion, the Court is satisfied that the detention of the applicant was based on a reasonable suspicion of his having committed criminal offences punishable under the Criminal Code.
It follows that the complaint under Article 5 § 1 is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
3. The applicant complains under Article 5 §§ 3 and 4 of the Convention of the courts’ refusal to consider the application he made for release when in prison hospital and of the obstacles to the communication of his applications to the courts.
The Court considers that it cannot, on the basis of the present state of the case-file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.
4. The applicant next complains under Article 6 § 3 (c) of the Convention about the national courts’ refusal to consider the application for his release lodged by his wife.
Article 6 § 3 (c) reads as follows:
“3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
Even assuming that the applicant has exhausted domestic remedies in this respect as required by Article 35 of the Convention, the Court finds that this complaint is inadmissible for the following reasons:
First, the Court notes that the criminal proceedings against the applicant never reached the trial phase. Article 6 does not extend to proceedings for the examination of applications for release from detention, which fall within the scope of Article 5 § 4 (see Woukam Moudefo v. France, application no. 10868/84, Commission decision of 21 January 1987, Decisions and Reports (DR) 51, p. 62)
The Court considers that the prohibition in the Code of Criminal Procedure for persons such as close relatives and guardians to take part in the investigative stage of the criminal proceedings is not incompatible with the Convention, since it appears to pursue the legitimate aim of ensuring sufficiently effective legal assistance at an early stage of the criminal proceedings, a factor which may prove crucial for the outcome of the proceedings as a whole (see, mutatis mutandis, F. S. J. and 22 others v. Switzerland (dec.), no. 27338/95, 24 February 1997).
The Court also notes that the applicant received legal assistance from at least three professional lawyers in making his applications for release.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicant also complains under Articles 2 and 3 of the Convention about the poor conditions of detention in the Tsivilsk remand centre SIZO 15/2.
The Court considers that it cannot, on the basis of the case-file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
6. In addition, the applicant complains under Articles 6 § 2 and 7 § 1 that the fact that the charge against him was dropped under an amnesty law constitutes a conviction without due process of law and deprives him of the right to claim compensation under Article 5 § 5.
The Court finds that the grant of an amnesty to the applicant under the relevant legislation does not appear to connote any guilt on his part.
Moreover, there is nothing to suggest that the applicant tried but was precluded from obtaining compensation in connection with his arrest.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
7. Finally, under various Convention provisions, inter alia, Articles 1, 2, 6 § 3 (a), 7 § 1, 8, 10 and 13, the applicant alleges numerous procedural irregularities during the investigation and challenges the merits of the charge.
However, to the extent that the applicant has substantiated these complaints and complied with the requirements of Article 35 § 1 of the Convention, 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 these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints about the national courts’ failure properly to deal with his applications for release pending trial and about the poor conditions of the detention;
Declares inadmissible the remainder of the application.
Søren NielsenChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy