Communicated on 2 June 2016
THIRD SECTION
Application no 7081/11
Stanislav Germanovich TARNOVSKIY against Russia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 7081/11 Tarnovskiy v. Russia
The application was lodged on 11 January 2011 by Mr Stanislav Germanovich Tarnovskiy who was born on 23 March 1982 and lives in Perm, the Perm Region.
The applicant was suspected of committing fraud by means of a sham sales contract. On 4 March 2010 he was arrested. On 6 March 2010 the Naberezhnochelninskiy Town Court of the Tatarstan Republic authorised the applicant’s detention. It referred to the gravity of the charges against the applicant and that there were sufficient reasons to believe that, if released, he could obstruct the investigation and abscond because he permanently resided in another region. On 12 March 2010 the Supreme Court of the Tatarstan Republic upheld the detention order, endorsing the reasoning of the Town Court.
On 9 April 2010 amended Article 108 § 1.1 of the Code of Criminal Procedure (“CCrP”) entered into force (see Domestic Law and Practice below). The provision set out that a person who was suspected or accused of certain non-violent offences committed “in the sphere of business activities” should not be detained on remand.
On 28 April 2010 the Town Court extended the applicant’s detention, without mentioning Article 108 § 1.1.
On 14 May 2010 the applicant requested that the investigator release him, referring to Article 108 § 1.1. On 17 May 2010 the investigator refused that request.
On an unspecified date the investigator asked the Town Court to extend the applicant’s detention. In response, the applicant asked the Town Court to release him, on the basis of Article 108 § 1.1. On 31 May 2010 the Town Court extended the applicant’s detention until 4 July 2010, invoking the gravity of the charges against him and the risk of him reoffending, absconding or obstructing the investigation. On 11 June 2010 the Supreme Court of the Tatarstan Republic upheld the extension order. It saw no reasons to vary the custodial measure. Neither court addressed the applicant’s argument under Article 108 § 1.1.
In the meantime, the applicant challenged the investigator’s refusal of 17 May 2010 before a court and on 16 June 2010 the Town Court declared that refusal unlawful. It held that the applicant had been “accused of an offence committed in the sphere of business activities” and instructed the investigator to rectify the breach of law. The investigator appealed against the decision, but that appeal was dismissed by the Supreme Court of the Tatarstan Republic.
Subsequently, the investigator applied to the Town Court for a further extension of the applicant’s detention. On 1 July 2010 the Town Court held that the applicant had been “accused of an offence committed in the sphere of business activities” and dismissed his application. On 3 July 2010 at 12.59 p.m. the applicant was released. On 23 July 2010 the Supreme Court of the Tatarstan Republic upheld the decision of 1 July 2010 on appeal.
On 21 December 2010 the Town Court found the applicant guilty of fraud and gave him a suspended sentence and a fine.
2. Application no. 33707/14 Rubtsov v. Russia
The application was lodged on 28 April 2014 by Mr Aleksandr Aleksandrovich Rubtsov who was born on 2 March 1965 and lives in Moscow. He is represented by Mr F. S. Shishov, a lawyer practising in Moscow.
On 1 October 2013 the applicant was arrested on suspicion of fraud by means of a sham sales contract. On 3 October 2013 the Taganskiy District Court of Moscow authorised his detention on remand in the following terms:
“... [the applicant] is suspected of having committed a serious offence aimed at making a profit which was unconnected to business activities and organised by a group of people, some of the accomplices have not yet been identified and arrested, [the offence being] punishable with up to ten years’ imprisonment.”
The District Court continued that the applicant was likely to obstruct the investigation because he had attempted to put pressure on witnesses and investigators. The District Court also considered that the applicant might abscond. On 21 October 2013 the Moscow City Court upheld the detention order.
On 28 November 2013 the District Court extended the applicant’s detention. The District Court repeated the reasoning given with its detention order of 1 October 2013. On 27 December 2013 the City Court upheld the detention extension on appeal.
On 27 January 2014 the District Court granted another extension of the applicant’s detention, restating its previous findings. The District Court added that the applicant had attempted even in detention to interfere with the investigation by coordinating his actions with a co-defendant. On 18 April 2014 the City Court upheld the detention extension on appeal. The City Court noted that the applicant’s offence was not connected to the sphere of business activities.
On 28 March 2014 the Ostankinskiy District Court of Moscow further extended the applicant’s detention. The District Court did not consider that the investigation had lasted too long given the complexity and size of the case, the number of defendants and other people involved in the proceedings. It held that the investigation had yet to perform the following actions: (1) to establish the whereabouts, interrogate and perform formal confrontations with a number of witnesses; (2) to seize certain documents at a federal registry; (3) to analyse the evidence; (4) to send legal assistance requests; (5) to finalise the bill of indictment, to provide it for the applicant to study and to interrogate the latter about the charges; and (6) to carry out other investigative actions. The District Court then repeated the grounds of the applicant’s detention: that he had been charged with a serious offence and might flee from justice. In addition, the applicant had a passport and had applied for a residence permit in a European country. If released, the applicant was deemed capable of obstructing the investigation by putting pressure on witnesses and coordinating the actions of the people involved in the criminal proceedings. He had allegedly done that, even in detention, via his lawyers. The District Court believed that the applicant was likely to reoffend and destroy evidence. It also referred to the applicant’s attempts to collect information about investigating officials in order to interfere with the performance of their duty. As to Article 108 § 1.1 of the CCrP, the District Court stated as follows:
“The court dismisses the arguments of the defence and of [the applicant] himself that the offence that he is accused of has been committed in the sphere of business activities, because, according to the current bill of indictment, he is accused of having committed an offence motivated by profit with the aim of misappropriating another’s property by fraud and abuse of trust, using an organised group, and on a particularly large scale. The court therefore concludes that the offence imputed to [the applicant] is not connected to the carrying out of a business activity, which is an independent activity undertaken at one’s own risk with the aim of obtaining regular revenues from the use of possessions, the sale of goods, or the performance of works or services by people registered in such a capacity in accordance with the law.”
3. Application no. 3762/15 Balayan v. Russia
The application was lodged on 18 February 2015 by Mr Gagik Borikovich Balayan who was born on 19 September 1966 and lives in Moscow. He is represented by D. R. Kevorkov, a lawyer practising in Moscow.
On 15 September 2014 a criminal investigation into the misappropriation of funds of an insolvent bank was opened. On 23 September 2014 the applicant was arrested on suspicion of transferring money out of the bank by acquiring unsecured promissory notes.
On 25 September 2014 the Tverskoy District Court of Moscow authorised the applicant’s detention. The applicant argued that he should not be detained, inter alia, because he was suspected of an offence committed in the sphere of business activities. The District Court rejected the argument as follows:
“... the court takes into account that, as can be seen from the evidence in the case, the method and circumstances described in the decision to initiate the criminal investigation, and the actions of [the applicant] to misappropriate the funds in this case are not related to activities defined in Article 2 § 1 of the Civil Code of the Russian Federation”.
On 10 November 2014 the Moscow City Court upheld the detention order on appeal. The City Court dismissed the applicant’s argument that his alleged offences had been committed in the sphere of business activities. In particular, the City Court held as follows:
“... a method of committing an offence by using another’s funds and taking on obligations to the Bank’s clients without any intention to comply with them, cannot be considered to be a business activity.”
B. Relevant domestic law and practice
1. Code of Criminal Procedure
Under Article 108 § 1, detention on remand could be ordered by a court in respect of people suspected or accused of having committed a criminal offence punishable by more than two years’ imprisonment (three years’ imprisonment since December 2012), provided that a less restrictive preventive measure could not be applied. People suspected or accused of having committed a criminal offence punishable by shorter terms of imprisonment could still be remanded in custody in exceptional circumstances, notably if they had no permanent place of residence, their identity had not been established, or they had breached a previously imposed preventive measure or had absconded.
On 9 April 2010 amended Article 108 § 1.1 entered into force:
“1.1. The preventive measure of detention on remand shall not be applied to a person suspected or accused of having committed offences set down in Articles 159 [fraud], 160 [misappropriation of funds], 165 [causing of pecuniary damages by fraud or abuse of trust] [of the Criminal Code of the Russian Federation], if these offences have been committed in the sphere of business activities, [...] and none of the [exceptional] circumstances indicated in [...Article 108] § 1 [...] are present.”
An amendment of Article 108 § 1.1 has been in force since 29 November 2012 to also include people suspected or accused of the various types of fraud introduced by new Articles 159.1-159.6 of the Criminal Code.
2. Practice of domestic courts
In Ruling no. 41 of 19 December 2013 “On the Practice of the Application by the Courts of Preventive Measures in the Form of Detention on Remand, Bail and House Arrest” the Plenary of the Supreme Court held as follows:
“7. ... when deciding on the question of the detention on remand of a person suspected or accused of offences set down in Articles 159-159.6, 160 and 165 of the CCRF, a court should always establish the sphere of activities in which the offence was committed.
8. In determining whether an activity is a business activity, the courts should be guided by Article 2 § 1 of the Civil Code of the Russian Federation, according to which a business activity is an independent activity carried out at one’s own risk with the aim of obtaining regular revenues from the use of possessions, the sale of goods, or the performance of works or services by people registered in such a capacity in accordance with the law.
[...] the offences set down in Articles 159-159.6, 160 and 165 of the CCRF should be considered as having been committed in the sphere of business activities if they have been committed by a person carrying out a business activity independently or participating in the business activity of a legal entity, and the offences are directly connected with the said activity. Such people include individual businessmen who commit the offences while carrying out their business activity or managing their possessions used for the performance of the business activity, as well as members of the management of a commercial company while using their powers to direct the company or while the company is carrying out its business activity.”
In Ruling no. 32-П of 11 December 2014 in a case on the constitutionality of Article 159.4 of the Criminal Code of Russia, upon referral by the Salekhardskiy Town Court of the Yamalo-Nenetsk Region, the Constitutional Court also referred to Article 2 § 1 of the Civil Code for the definition of a business activity.
COMPLAINTS
1. The applicants complain under Article 5 § 1 of the Convention that their detention was unlawful because they had been charged with offences committed in the sphere of business activities and, thus, by virtue of Article 108 § 1.1 of the CCrP, should not have been detained on remand.
2. The applicants (applications nos. 7081/11 and 33707/14) complain under Article 5 § 3 of the Convention that the courts failed to give relevant and sufficient reasons for their detention.
QUESTIONS
QUESTION COMMON TO ALL CASES
1. Was the domestic law which provided for the applicants’ detention foreseeable in its application, as required by Article 5 § 1 of the Convention? In particular, is the term “business activities” of Article 108 § 1.1 of the Code of Criminal Procedure of the Russian Federation sufficiently precise and foreseeable in its application? The parties are requested to provide statistics and examples of cases where the national courts applied Article 108 § 1.1 of the Code of Criminal Procedure of the Russian Federation (the parties are to provide full texts of the court decisions as well as a table of citations from the court decisions demonstrating what are considered as business activities).
CASE SPECIFIC QUESTION
Applications nos.7081/11 and 33707/14
1. Was the length of the applicants’ detention on remand compatible with the “reasonable time” requirement of Article 5 § 3 of the Convention?
APPENDIX
List of applications
7081/11TARNOVSKIY v. Russia 33707/14RUBTSOV v. Russia* 3762/15BALAYAN v. Russia*
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