Communicated on 20 September 2018
FIRST SECTION
Application no. 48881/14
Oleg Gennadyevich SENTSOV
against Russia
lodged on 7 July 2014
STATEMENT OF FACTS
The applicant, Mr Oleg Gennadyevich Sentsov, is a Ukrainian national, who was born in 1976 and is currently serving his sentence in the Federal Penal Institution “Correctional colony no. 8 of the Directorate of the Federal Service for the Execution of Punishments for the Yamalo-Nenets Autonomous Area”. He is represented before the Court by Ms N.O. Dobreva, a lawyer practising in Sofia, Bulgaria.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Ukrainian filmmaker and writer and a native of Crimea. He actively opposed the annexation of Crimea by the Russian Federation in 2014 by delivering food supplies to the Ukrainian army units trapped in their barracks.
Late in the evening of 10 May 2014 the applicant was arrested by officers of the Russian Federal Security Service (FSB) at his home and taken to a local police station. The protocol of arrest was drawn only on the following day; it indicated that the applicant had been arrested at 8:15 am on 11 May 2014 on suspicion of being a member of a terrorist organization and of actively preparing terrorist attacks with explosives and of acquiring illegal explosives.
On the same day the Kiev District Court of Simferopol ordered the applicant’s pre-trial detention. The court reasoned that the applicant was suspected of being a member of a terrorist group, of having paid 200 Ukrainian hryvnas (UAH) (approximately 12 euros (EUR)) to another suspect, Mr Ch., to purchase two explosive devices and then of instructing the latter to blow up two monuments: that of Lenin and that of the Unknown Soldier. From the court reasoning it appears that the special services carried out a controlled delivery of explosives operation, which led to the arrest of Mr Ch. At the hearing the applicant was represented by a lawyer appointed ex officio, who never consulted him, did not communicate with him before or after the hearing and failed to appeal against the pre-trial detention order.
On 13 May 2014 the investigator in charge of the case ordered the joinder of the criminal proceedings against the applicant, Mr A. and those against Mr Ch. In this ruling the investigator indicated for the first time that the applicant along with the two other suspects was also suspected of having set fire to two buildings in Simferopol on 14 and 18 April 2014 respectively.
The applicant’s relatives were able to engage a lawyer for him only a week later. The lawyer filed an appeal against the pre-trail detention order on 21 May 2014 along with a request for an extension of the time limit for an appeal. However, on the same day the request for the extension of the time limit was refused by the Kiev District Court of Simferopol and the appeal was dismissed on procedural grounds, for being filed out of time.
On 30 May 2014 the applicant’s lawyer filed a cassation appeal with the City Court of Sevastopol, asking the court to quash the pre-trial detention order of 11 May 2014, and to remit the issue for a fresh examination. The appeal argued that the pre-trial detention order was unclear and allowed excessively wide discretion as to the time of detention, failed to discuss the lack of evidence justifying a reasonable suspicion against the applicant, and neglected to go into his family and personal situation and other factors demonstrating the absence of any risk of his absconding. The appeal was not reviewed on the merits, but instead it was dismissed on procedural grounds. The applicant’s lawyer then filed a cassation appeal with the Supreme Court of the Russian Federation, which was also dismissed.
While the applicant was held in detention in Simferopol, the investigation authorities refused to allow his lawyers to visit him. The lawyers were in Simferopol from 19 to 22 May 2014, but were not allowed to see the applicant and were refused access to all the documents in the case file.
On 29 May 2014 the applicant was transferred to a detention facility in Moscow.
The Ukrainian diplomatic representatives in Russia were never informed of the applicant’s detention and the applicant was refused Ukrainian consular assistance, apparently on the assumption that the applicant had lost his Ukrainian citizenship and had acquired Russian citizenship as a result of the annexation of Crimea by Russia.
On 6 June 2014 the applicant’s lawyer applied to the head of the Investigation unit of the FSB for permission to receive copies of documents in the case file, including the judicial decisions related to the pre-trial detention of the applicant. In his request the lawyer expressly indicated that those documents were needed for the purpose of filing a complaint with the European Court of Human Rights.
On the same day the investigator in charge of the case gave a decision refusing the request. The investigator held that no copies of documents could be provided as the purpose of the request was “filing a complaint with the European Court of Human Rights”. This, the investigator found, would result in an unlimited number of individuals reading the documents, which would make it impossible for the investigator to oblige each and every such individual to refrain from divulging information about the case. The applicant’s lawyers were sent an information note about that ruling. The lawyer appealed against the ruling to the competent court. By a ruling of 25 August 2014 the Lefortovskii District Court of Moscow upheld the refusal of the investigating authority.
After being granted access to the investigation file, the applicant’s lawyers were ordered by the investigation authorities not to divulge any information about the proceedings against the applicant. Those orders were served on the lawyers in writing and the lawyers had to sign a statement to the effect that they had been explicitly warned that they would face criminal charges if they violated them. On 18 July 2014 the lawyers challenged these orders at the competent court, but by the ruling of 18 August 2014 the Lefortovskii District Court of Moscow upheld the ban, reasoning that the investigation authorities had full discretion in the matter. On 13 October 2014 that ruling was upheld on appeal by the Moscow City Court.
On 7 July 2014 the Lefortovskii District Court of Moscow extended the applicant’s pre-trial detention for an additional three months, reasoning that the applicant was charged with serious crimes, which justified the conclusion that he might get involved in committing further crimes if released.
The applicant appealed against the extension of his detention repeating his arguments that his initial detention was not lawful, as the judge, the prosecutor and the ex-officio defence lawyer had not been appointed in accordance with the applicable laws, and that continued detention was not justified as there was no evidence in support of a reasonable suspicion against him and in view of his personal situation.
On 8 August 2014 the Moscow City Court upheld the extension of the applicant’s detention. The court held that the lower court did examine the evidence in support of the reasonable suspicion against the applicant and that continued detention was justified on the grounds of such reasonable suspicion as well as on the fact that not all suspects have been established and arrested, which created a risk of the applicant absconding or committing further crimes if released. As to the legality of the initial order of pre-trial detention by the Simferopol court, the Moscow City Court held that it did not have the powers to review it, as it had become final.
B. Relevant domestic law
1. Constitution of the Russian Federation
Article 22
“1. Every person has the right to freedom and personal inviolability.
2. No one shall be arrested or held in custody other than pursuant to a court decision ...”
Article 29
“1. Everyone is guaranteed the freedom of thought and speech.
...”
Article 46
“...
3. Everyone has the right, pursuant to the international treaties of the Russian Federation, to apply to intergovernmental human rights protection bodies after exhaustion of all available domestic remedies.”
Article 49
“1. Each person accused of having committed a crime is presumed innocent until his or her guilt is proved through the process provided for by the federal law and established by a court verdict in force ...”
2. Criminal Code of the Russian Federation
Article 205.
Terrorist attack
“1. Commission of an explosion, arson or other actions that terrorize population and create danger of human death, infliction of considerable property damage or other grievous consequences with the purpose to destabilize activities of the authorities or international organizations, or to influence on their decisions making, as well as the threat of committing the above actions in order to influence on decisions making by the authorities or international organizations -
are punished by deprivation of liberty for the period from ten to fifteen years.
2. The same actions:
a) committed by a group of persons in collusion ...
are punished by deprivation of liberty for the period from twelve to twenty years with limitation of liberty for the period from one year to two years.
...”
Article 205.4.
Creation of a terrorist organization and participation in it
“1. Creation of a terrorist organization, that is a permanent group of persons, who a priori united to carry out terrorist activities ... justification and support of terrorism, as well as managing such terrorist organization...
Shall be punished by deprivation of liberty from fifteen to twenty years with a fine in the amount of one million roubles, or in the amount of a salary or other income of the convict for the period of up to five years or without such and with limitation of freedom for the term from one to two years or life sentence.
...”
Article 222.
Illegal purchase, transfer, sale, storage, transportation or carrying of a weapon,
its basic parts and ammunition
“1. Illegal purchase, transfer, sale, storage, transportation or carrying of a weapon, its basic parts and ammunition ...
Are punished by limitation of liberty for the period of up to three years, or compulsory labour for the period of up to four years, or detention for the period of up to six months, or deprivation of liberty for the period of up to four years with a fine in the amount of up to eighty thousand roubles or in the amount of a salary or other income of the convict for the period of up to three months or without it.
2. The same actions committed by a group of persons in collusion, -
are punished by deprivation of liberty for the period from two to six years with a fine in the amount of up to one hundred thousand roubles or in the amount of a salary or another income of the convict for the period of up to six months or without it.
3. The actions stipulated by parts one or two of this article, committed by an organized group, -
Are punished by deprivation of liberty for the period from five to eight years with a fine in the amount from one hundred thousand to two hundred thousand roubles or in the amount of a salary or another income of the convict for the period from one year to eighteen months or without it.
...”
3. Code of Criminal Procedure of the Russian Federation
Article 47.
Accused
“...
4. The accused is entitled:
...
12) upon completion of the pre-trial investigation to familiarise with all the criminal case-file materials and to take notes from the case file of any information in any amount;
13) at his/her expense to make copies from the case-file materials, including by technical means;
...”
Article 53.
Powers of the defence counsel
“...
7) upon completion of the pre-trial investigation to familiarise with all the criminal case-file materials and to take notes from the case file of any information in any amount, at his/her expense to make copies from the case-file materials, including by technical means;
...
3. The defence counsel may not disclose the information concerning the pre-trial investigation, which he has learnt in connection with carrying out the defence, when he/she was warned about it in advance, pursuant to the procedure established by Article 161 of this Code. For disclosure of the information of the pre-trial investigation the defence counsel shall be liable under Article 310 of the Criminal Code of the Russian Federation.”
Article 97.
Grounds for the application of preventive measures
“1. The investigator and the court within the granted powers may impose on the accused one of the preventive measures provided for by this Code, when there are sufficient grounds to believe that the accused or the suspect:
1) will abscond from the inquiry, the pre-trial investigation or the;
2) can continue pursuing criminal activities;
3) can threaten the investigator or other participants of the criminal proceedings, destroy the evidence or in any other way to obstruct the criminal proceedings.
...”
Article 99.
Circumstances to be taken into account in choosing a preventive measure
“In resolving the issue of imposing a preventive measure on the suspect or accused of a crime and choosing its kind, when there are grounds provided for by Article 97 thereof, also such circumstances as the gravity of the offence, information about the suspect’s or accused’s personality, his/her age, state of health, family status, type of employment and others shall be taken into consideration.”
4. Federal Constitutional Law entitled “On Admission of the Republic of Crimea to the Russian Federation and Creation in the Framework of the Russian Federation of new entities – Republic of Crimea and the City of Federal Significance of Sevastopol“
Article 4.
Recognition of the citizenship of the Russian Federation for citizens of Ukraine and stateless persons that permanently reside on the territory of the Republic of Crimea or on the territory of the city of federal significance of Sevastopol
“1. From the day of admission of the Republic of Crimea to the Russian Federation and creation of new entities in the framework of the Russian Federation, citizens of Ukraine and stateless persons that as of that day permanently reside on the territory of the Republic of Crimea or on the territory of the city of federal significance of Sevastopol, shall be recognized as the citizens of the Russian Federation, with the exception of the persons, who within one month from that day shall declare their wish to keep their and/or their under-age children’s other citizenship or to remain stateless persons.
...
4. A person, who has been recognized a citizen of the Russian Federation and who has received an identification document of a citizen of the Russian Federation, shall be deemed as a citizen who has no foreign citizenship, if that person submits a statement that he/she does not wish to keep the foreign citizenship ...”
Article 9.
Creation of courts of the Russian Federation on the territories of the Republic of Crimea and the city of federal significance of Sevastopol. Administration of justice during the transition period
“1. During the transition period courts of the Russian Federation (federal courts) will be created in accordance with the judicial system laws of the Russian Federation on the territories of the Republic of Crimea and the city of federal significance of Sevastopol with taking into consideration their administrative and territorial division established by the respective legislative (representative) body of the state authorities of the Republic of Crimea and by the respective legislative (representative) body of the state authorities of the city of federal significance of Sevastopol.
2. The persons holding positions of judges of the courts acting on the territories of the Republic of Crimea and the city of Sevastopol as of the day of the Republic of Crimea admission to the Russian Federation and creation of new entities in the framework of the Russian Federation shall have priority for obtaining positions of judges in the courts of the Russian Federation created on those territories, when they have citizenship of the Russian Federation and comply with other requirements to the candidates for positions of judges established by the Russian Federation laws on status of judges. The competition for positions of judges in the above-mentioned courts shall be conducted by the Supreme Qualification Board of Judges of the Russian Federation.
...
5. Before creation of courts of the Russian Federation on the territories of the Republic of Crimea and the city of federal significance of Sevastopol, the justice in the name of the Russian Federation on the aforementioned territories shall be administered by the courts acting as of the day of the Republic of Crimea admission to the Russian Federation and creation of new entities in the framework of the Russian Federation. Provided they have the citizenship of the Russian Federation the persons holding positions of judges of those courts shall continue to administer justice, until creation and beginning of functioning on the aforementioned territories of the courts of the Russian Federation.
...”
5. Status of Judges Act of the Russian Federation
Article 4.
Requirements to the candidates for a position of a judge
“1. A citizen of the Russian Federation can become a judge, provided he/she:
1) has a higher legal education with specialization of “Jurisprudence” or higher education in the field of study of “Jurisprudence” with master’s degree and bachelor’s degree in the field of study of “Jurisprudence”;
2) has no conviction, or any criminal proceedings concerning him or her were terminated on rehabilitating grounds;
3) has no citizenship of a foreign state or any residence permit or any other document confirming the right for permanent residence of a citizen of the Russian Federation on the territory of a foreign state;
4) has not been deprived of or limited in legal capacity by a court;
5) is not accounted in a narcological or psychoneurologic dispensary in connection with his/her treatment for alcoholism, drug addiction, toxicomania or chronic and lingering mental disorder;
6) has no other diseases preventing from carrying out the functions of a judge.
...”
Article 5.
Selection of candidates for a position of a judge
“1. Candidates for a position of a judge are selected on a competitive basis.
...
2.1. Judge Qualification Examination Boards (hereinafter – Examination Boards) are created to check whether a candidate for the position of a judge has the theoretical knowledge and practical skills in the sphere of law application, necessary to work on a position of a judge in a court of a certain kind.
...
3. Any citizen who has achieved the age established by this Law, has a higher legal education with specialization of “Jurisprudence” or higher education in the field of study of “Jurisprudence” with master’s degree and bachelor’s degree in the field of study of “Jurisprudence”, the required work experience in legal profession, has no diseases that would prevent his/her appointment for a position of a judge, shall be entitled to take the judge qualification examination by submitting an application for taking the qualification examination to the respective Examination Board...
...
8. Based on the results of consideration of the applications from all the persons applying for a position of a judge, results of verification of the reliability of the documents and information specified in Clause 6 of this Article, and taking into consideration results of the qualification exam, the Judge Qualification Board shall make decision to recommend one or several candidates for a position of a judge ...”
COMPLAINTS
Under Article 5 § 1 (c) of the Convention, the applicant complains that his arrest and the decision on his detention were arbitrary and not in accordance with the law.
The applicant complains under Article 5 § 3 that he was not brought before a judge established in accordance with the national law and that the decision on his detention was not substantiated.
He further complains that he was denied a fair review of his continued detention as he was never allowed to appeal the pre-trial detention order of 11 May 2014 and his lawyers were banned from publicly discussing the evidence.
The applicant lastly complains under Article 34 of the Convention that he was hindered from submitting a complaint to the European Court of Human Rights, as his lawyers were banned from discussing the facts of the case as well as making copies of the documents and submitting them to the Court.
QUESTIONS TO THE PARTIES
1. Did the applicant come within the jurisdiction of the Russian Federation within the meaning of Article 1 of the Convention as interpreted by the Court, inter alia, in the cases of Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 130-150, ECHR 2011 and Al-Jedda v. the United Kingdom [GC], no. 27021/08, §§ 74-86, on account of the circumstances of the present case?
2. Are the acts of which the applicant complains in the present case imputable to the Russian Federation, within the meaning of Article 34 in conjunction with Article 1 of the Convention?
3. Did the applicant’s deprivation of liberty fall within paragraph (c) of Article 5 § 1?
4. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?
5. Was the judge who on 11 May 2014 ordered the applicant’s pre-trial detention, a “judge or other officer duly authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention (see Schiesser v. Switzerland, 4 December 1979, § 31, Series A no. 34)?
6. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention? Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?
7. Has there been any hindrance by the State in the present case with the effective exercise of the applicant’s right of application, ensured by Article 34 of the Convention?
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