FIRST SECTION
DECISION
Application no. 42058/04
by Teymuraz TSITSKISHVILI
against Russia
The European Court of Human Rights (First Section), sitting on 3 July 2008 as a Chamber composed of:
Christos Rozakis, President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 3 November 2004,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Teymuraz Vakhtangovich Tsitskishvili, is a Russian national who was born in 1958 and lives in Moscow. He is represented before the Court by Mr P. Astakhov, a lawyer practising in Lyubertsy in the Moscow Region. The respondent Government are represented by Mrs V. Milinchuk, Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 November 2003 the applicant was arrested on suspicion of fraud. Criminal case no. 173727 was opened against him.
On 13 November 2003 the applicant was formally charged with an offence under Article 159 § 2 of the Criminal Code (“Fraud”). This offence being punishable by up to five years’ imprisonment, it was classified as a medium-gravity offence.
On 20 April 2004 the investigator in charge of the applicant’s case (no. 173727) decided to lodge an application to a court for a further extension of the applicant’s detention. That decision was approved by the Moscow City Prosecutor.
On 28 April 2004 the criminal case against the applicant was split into two. A new case on suspicion of aggravated fraud was registered under no. 308826. No measure of restraint was imposed in that case.
On 30 April 2004 the Kuzminskiy District Court of Moscow heard the application for the extension lodged in the framework of criminal case no. 173727. Counsel for the applicant maintained that an extension beyond the six months’ period would be unlawful because it could be authorised only in respect of persons charged with serious offences, whereas the applicant had only been charged with a medium-gravity offence. The District Court granted an extension until 4 July 2004.
Counsel for the applicant lodged an appeal, maintaining that no extension beyond six months could have been lawfully granted.
On 7 May 2004 cases nos. 173727 and 308826 were joined under the first number and, on 13 May 2004, the applicant was formally charged with aggravated fraud and abuse of power, offences under Article 159 § 3 and 201 § 1 of the Criminal Code. Aggravated fraud was classified as a serious offence.
On 19 May 2004 the Moscow City Court rejected the appeal. It held that the extension had been lawful because the application for the extension had been lodged by a competent prosecutor within the established time-limits. It had been justified because the investigation had needed more time to finalise the charge sheet. There had been no breach of the Code of Criminal Procedure because on 13 May 2004 the applicant had been formally charged with, inter alia, a serious criminal offence.
COMPLAINTS
The applicant complained under Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention that the judge of the Kuzminskiy District Court had unlawfully granted an extension of his detention in excess of six months and that the higher courts had not made good that violation of the Code of Criminal Procedure.
THE LAW
The Court recalls Article 37 of the Convention which, in the relevant part, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
...
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court observes that, by letter of 26 July 2007, the Government’s observations were forwarded to the applicant who was requested to submit any observations together with any claims for just satisfaction in reply by 27 September 2007. No response was received from the applicant.
By letter of 6 November 2007 sent by registered mail, the applicant was advised that the period allowed for submission of his observations had expired and that no extension of time had been requested. His attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court would strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. A similar letter was sent by registered mail on 26 March 2008 to the applicant and his lawyer, Mr Astakhov. The applicant received the letter on 9 April 2008 but never replied. No response has been received from Mr Astakhov.
The Court considers that, in these circumstances, the applicant may be considered as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. The Court further considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of his complaints (Article 37 § 1 in fine). In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out of the list of cases.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy