Communicated on 3 May 2017
THIRD SECTION
Application no. 5773/15
Marina Eduardovna ROSHCHUPKINA
against Russia
lodged on 15 January 2015
STATEMENT OF FACTS
The applicant, Ms Marina Eduardovna Roshchupkina, is a Russian national, who was born in 1966 and is detained in Moscow. She is represented before the Court by Mr V.Y. Pavlov, a lawyer practising in St Petersburg.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is an accused in a criminal case opened into fraud. She was arrested on 15 October 2013 and placed into custody by the court order of 17 October 2013.
On 15 July 2014 the criminal case was transmitted from the investigation authorities to the Tushinskiy District Court in Moscow. On the same date the court decided to hold a preliminary hearing on 23 July 2014. In the same decision the court extended the detention for 9 days until the preliminary hearing. It appears that the court did not hear the parties and the applicant did not have an opportunity to make any submissions.
The applicant lodged an appeal against the decision of 15 July 2014 arguing that the Tushinskiy District Court violated her right to defence as she had no opportunity to be heard or make submissions. The applicant also argued that the extension was not justified.
On 24 August 2014 the Moscow City Court dismissed the appeal having found that the applicant’s pre-trial detention had expired on 15 July 2014, that the court had examined the criminal case and had decided that it was necessary to extend the measure. The appellate court also found that “during the preliminary hearing on 23 July 2014 the Tushinskiy district court had heard the applicant and her representative therefore the extension of the preventive measure on 15 July 2014 had not violated the applicant’s right to defence.”
B. Relevant domestic law and practice
Article 108 of the Code of Criminal Procedure regulates the application of the preventive measure in the form of detention:
“3. ... When deciding the preventive measure in the form of detention, the particular circumstances shall be indicated in the court order which served as the grounds for the court to adopt such a decision ...
...
5. The application of the preventive measure in the form of detention without the participation of the accused is permitted only when the accused is put on a wanted list.”
Ruling of the Constitutional Court no. 372-O dated 20 October 2005:
“... the restriction of liberty and security of person may be imposed only by the lawful order of a court adopted at the hearing and based on particular circumstances of a criminal case providing the accused with the opportunity to be heard before the court. Prohibition on imposition of the preventive measure out of court hearing is applied to all court orders concerning both the application of original preventive measure and its extension. The preventive measure may be imposed only at the conclusion of its examination providing to the parties the opportunity to present their arguments in the adversarial proceedings.”
COMPLAINTS
1. Under Article 5 § 3 of the Convention the applicant complains that the decision of 15 July 2014 lacked reasoning for the extension of detention measure.
2. Relying on Article 5 § 1 (c) of the Convention the applicant complains that she had no opportunity to be heard or to make submissions before the court on 15 July 2014.
QUESTIONS TO THE PARTIES
1. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her detention, as required by Article 5 § 4 of the Convention?
2. Was the procedure by which the applicant sought to challenge the lawfulness of her pre-trial detention in conformity with Article 5 § 4 of the Convention?
3. Were there grounds for the applicant’s continued detention, as required by Article 5 § 3 of the Convention?
Full & Egal Universal Law Academy