Communicated on 3 September 2014
FIRST SECTION
Application no. 9070/14
Ernest Talatovich MEMETOV against Russia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix. They are co-defendants in the same criminal proceedings which are currently pending.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were arrested on suspicion of drug-related offences and subsequently charged with membership of a criminal enterprise and several counts of dealing with heroin.
The first applicant was arrested on 22 July 2010; the second – on 21 July 2010; the third – on 22 December 2010; the fourth – on 12 July 2011; and the fifth – on 18 May 2011. They have been in detention on remand ever since. Their detention on remand was ordered and extended by the courts. In all cases the courts refused to release the applicants or replace detention on remand with a non-custodial preventive measure. The detention orders were essentially based on the gravity of the charges and the severity of the impending punishment as the primary source to justify the risk of the applicants’ absconding, interfering with the course of justice and re-offending. As a rule, the courts used stereotyped formulae without addressing specific facts or considering alternative preventive measures.
In October 2011 the applicants were provided with a bill of indictment, informed that the investigation had been completed, and given access to the case file running to 198 binders. The study of the case file lasted for about one year. During that period their detention was extended on several occasions by the courts on the ground that they needed to study the case file. The courts also referred to the gravity of charges, risks of absconding, interfering with the course of justice and re-offending.
On 14 December 2012 the criminal case was sent to the Voronezh Regional Court (the Regional Court) for examination on the merits. Twenty co-defendants were committed to stand trial in total.
On 17 December 2012 the Regional Court received the case.
On 25 December 2012 the Regional Court extended the applicants’ detention pending trial for six months until 17 June 2013.
On 9 January 2013 the Regional Court remitted, according to the rules on territorial jurisdiction, the case to the St Petersburg City Court for trial. The prosecution appealed.
On 16 April 2013 the appellate chamber of the Voronezh Regional Court upheld the decision of 9 January 2013.
On an unspecified date the St Petersburg City Court (the City Court) received the case and, on 23 May 2013, held a preparatory hearing.
On 14 June 2013 the City Court extended the applicants’ detention pending trial until 17 September 2013.
On 11 July 2013 the City Court decided to return the case to the prosecutor to remedy some shortcomings of the investigation and ordered that the applicants remain in detention. The applicants appealed, arguing, inter alia, that their detention pending investigation was in breach of the maximum time-limits provided for by law. The prosecutor also appealed against the decision to return the case to the prosecution.
On 16 September 2013 the appellate chamber of the St Petersburg City Court upheld the decision of 11 July 2013 and extended the applicants’ detention pending investigation for two months until 17 November 2013.
On 19 September 2013 the Investigative Division of the Investigative Department of the Federal Service for Drug Control received the case and on 20 September 2013 the head of the Department set one month for additional investigation.
In the end of September 2013 the applicants were provided with a new bill of indictment, informed that the investigation had been completed, and given access to the case file consisting of 387 binders.
It appears that they are still in detention with a view to study the case file.
B. Relevant domestic law and practice
Code of Criminal Procedure of the Russian Federation (“the CCrP”) of 2001, in force since 1 July 2002
1. Preventive measures
“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).
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).
Detention may be ordered by a court in respect of a person suspected 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).
2. Time-limits for detention “pending investigation”
(a) Initial detention and its extensions
After arrest the suspect is placed in detention “pending investigation”. Detention “pending investigation” must not exceed two months (Article 109 § 1).
A judge may extend the detention up to six months. Further extensions to up to twelve months may be granted by a judge 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).
An extension of detention beyond twelve months and up to eighteen months may be authorised by a court 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 (Article 109 § 3).
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).
(b) Supplementary extension for study of the case file
Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 of Article 109 (Article 109 § 5).
If access is granted at a later date, the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6).
If access was granted thirty days before the expiry of the maximum period of detention but the thirty-day period proved to be insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period. If several defendants are involved in the proceedings and the thirty-day period is insufficient for at least one of them to read the entire case file, the investigator may request the court to extend the period of detention in respect of those defendants who have completed reading the case file, provided that the need to apply a custodial measure to them persists and that there are no grounds for choosing another preventive measure (Article 109 § 7).
Within five days of receipt of the request for an extension the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted, the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8).
3. Time-limits for detention “during trial”
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. Time-limits for detention “pending elimination of impediments to trial”
Under Article 237 of the Code, the trial judge can return the case to the prosecutor in order for defects impeding the trial to be remedied, for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused. If the trial court decides to return the case to the prosecutor, it must decide on the preventive measure in respect of the accused (Article 237 § 3). By Federal Law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge should extend the term of detention with due regard to the time-limits in Article 109 of the Code.
Case-law of the Constitutional Court of the Russian Federation
Examining the compatibility of Article 97 of the RSFSR CCrP (now replaced by Article 109 of the CCrP) with the Constitution, on 13 June 1996 the Constitutional Court ruled as follows:
“... affording the defendant a sufficient time for studying the file must not result in ... his detention for a period of an unlimited duration. In that case such detention would amount to a sanction for using by the defendant of his procedural rights and thereby induce him to waive these rights ...”
On 25 December 1998 the Constitutional Court issued a further clarification of its position (decision no. 167-O), finding as follows:
“3. ... the studying of the file [by the defendant and his counsel] is a necessary condition for extending the term of detention [beyond eighteen months] but it may not be, taken on its own, a sufficient ground for granting such an extension... For that reason, in each particular case the prosecutor’s application for extending the period of detention beyond eighteen months (Article 97 §§ 4, 6 of the RSFSR CCrP) must refer not to the fact that the defendant and his counsel continue to study the file ... but rather to factual information demonstrating that this preventive measure cannot be revoked and the legal grounds for its continued application remain ...
6. ... Article 97 § 5 of the RSFSR CCrP expressly provides that, on an application by a prosecutor, the judge may extend the defendant’s detention until such time as the defendant and his counsel have finished studying the file and the prosecutor has submitted it to the [trial] court, but by no longer than six months. Accordingly, the law does not provide for lodging of repeated applications for extension of the defendant’s detention, even after an additional investigation [has been carried out] ... In the absence of an express legal provision for repeated extensions of detention on that ground, any other interpretation of [Article 97] would breach the prohibition on arbitrary detention within the meaning of the Constitutional Court’s decision of 13 June 1996.”
By decision no. 352-O of 11 July 2006, the Constitutional Court confirmed its position, by reference to above-cited decision no. 167-O, that in the absence of an express provision to that effect, time-limits during the pre-trial investigation may not be repeatedly extended, particularly on the same grounds, in excess of the maximum time-limit set out in the CCrP.
In decision no. 271-O-O of 19 March 2009, the Constitutional Court expressed the view that Article 109 § 8 (1) of the CCrP was compatible with the Constitution. Even though this provision did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant committed the offence but mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending.
Case-law of the Supreme Court of the Russian Federation
By decision no. 32-П12 of 18 April 2012, the Presidium of the Supreme Court of the Russian Federation held to re-open the proceedings concerning pre-trial detention of Mr Tsarenko in connection with the Court’s judgment in the case of Tsarenko v. Russia (no. 5235/09, 3 March 2011), in which the Court had found in particular a violation of Article 5 § 1 of the Convention on the ground that the provisions of Russian law governing detention pending study of the case file by a defendant are not foreseeable in their application and fall short of the “quality of law” standard required under the Convention in so far as they do not contain any express rule regarding the possibility of repeated extensions of a defendant’s detention pending study of the case file. Following the re-opening of the proceedings, the Presidium quashed, inter alia, the detention orders by which his pre-trial detention for the purpose of study of the case file had been repeatedly extended.
A similar approach was adopted by the Presidium in its subsequent case-law (see decisions nos. 223-П13 of 18 December 2013, 144-П13 of 15 January 2014, and 179-П13 of 28 May 2014 issued in connection with the Court’s judgments where a similar violation of Article 5 § 1 of the Convention had been found, see Suslov v. Russia, no. 2366/07, 29 May 2012; Koroleva v. Russia, no. 1600/09, 13 November 2012; Pyatkov v. Russia, no. 61767/08, 13 November 2012, respectively).
COMPLAINTS
1. All the applicants complain under Article 5 of the Convention that their continued detention on remand has been in excess of the maximum eighteen-month period of detention provided for by law;
2. The second, fourth and fifth applicants also complain about unreasonable length of their detention on remand;
3. In addition, the second applicant complains under Article 5 § 5 that he is unable to receive compensation for the above violations.
QUESTIONS TO THE PARTIES
1. What is the current state of the criminal proceedings against the applicants on charges of large-scale drug trafficking and membership of a criminal enterprise?
2. Was the applicants’ detention on remand in conformity with the requirements of Article 5 § 1 of the Convention? In particular:
(a) Has the maximum statutory period of detention pending investigation (eighteen months) expired at the moment of return by the trial court of the applicants’ criminal case to the prosecutor on 11 July 2013? If not, when did it expire?
(b) Were extensions of the applicants’ detention pending investigation on the grounds of the need for them and their counsels to familiarise themselves with the materials of the criminal case after the return of the case to the prosecutor on 11 July 2013 compatible with the requirements of Article 5 § 1 of the Convention, having regard to the fact that the maximum eighteen-month period had expired and that the applicants’ detention had already been extended on several occasions on that ground in 2011-2012 (see Tsarenko v. Russia, no. 5235/09, § 61, 3 March 2011; Suslov v. Russia, no. 2366/07, § 78, 29 May 2012; Pyatkov v. Russia, no. 61767/08, § 90, 13 November 2012; and, mutatis mutandis, Shteyn (Stein) v. Russia, no. 23691/06, § 94, 18 June 2009)?
(c) Is the domestic law, in particular the Russian Code of Criminal Procedure of 18 December 2001, in conformity with the requirements of Article 5 § 1 of the Convention? In particular, are the provisions of the Code of Criminal Procedure sufficiently accessible, precise and foreseeable in their application, in so far as they provide for extension of the defendants’ detention beyond eighteen months on the grounds of the need for them and their counsels to familiarise themselves with the materials of the criminal case and do not set any time-limits for such detention? Does the Code of Criminal Procedure contain an express provision for the defendants’ detention with a view to second study of the case file after a remittal of the case by the trial court to the prosecutor?
3. Was the length of the applicants’ detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, did the authorities rely on “relevant and sufficient reasons” for his continuing detention and were the proceedings conducted with “special diligence”?
The Government are invited to provide copies of all detention orders against the applicants, their appeals against those orders and the decisions of the appellate courts.
4. Has there been a violation of the applicants’ right to compensation for detention in contravention of Article 5 §§ 1 and 3, as required by Article 5 § 5 of the Convention? Does the Russian law provide for a possibility to obtain compensation for a violation of the right to trial within a reasonable time or release pending trial (see see Korshunov v. Russia, no. 38971/06, § 62, 25 October 2007, and Govorushko v. Russia, no. 42940/06, § 60, 25 October 2007)? Did the applicants have an enforceable right to compensation for their alleged unlawful detention pending investigation (being in excess of the maximum eighteen-month), given that the domestic courts in detention proceedings had considered their detention to be lawful (see, mutatis mutandis, Nolan and K. v. Russia, no. 2512/04, § 104, 12 February 2009; and Chuprikov v. Russia, no. 17504/07, § 98, 12 June 2014 (not final))?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
9070/14
26/12/2013
Ernest Talatovich MEMETOV
04/06/1988
St Petersburg
12341/14
27/03/2014
Andrey Alekseyevich MORKOVIN
07/02/1993
St Petersburg
13214/14
20/05/2014
Rustam Saydaliyevich NOROV
18/08/1979
St Petersburg
15237/14
07/05/2014
Arkadiy Ivanovich PAVLYUKEVICH
12/12/1978
St Petersburg
18426/14
07/05/2014
Aleksandr Sergeyevich POSOKHIN
21/03/1986
St Petersburg
Full & Egal Universal Law Academy