Communicated on 22 January 2014
FIRST SECTION
Application no. 19857/09
Timur Akhatovich URMANOV
against Russia
lodged on 27 February 2009
STATEMENT OF FACTS
The applicant, Mr Timur Akhatovich Urmanov, is a Russian national, who was born in 1976 and lives in Neftekamsk.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Criminal proceedings against the applicant
On 4 March 2008 he quit his job as a police officer of the Neftekamsk criminal investigation department of the Bashkortostan Republic and started working in a private company OAO NefAZ.
On 4 September 2008 the applicant was arrested on suspicion of his involvement in forced engaging in prostitution (three counts) and in illegal penetration into a dwelling. He was formally charged with the imputed crimes the same day.
On 5 September 2008 the Leninskiy District Court of Ufa (“the District Court”) remanded the applicant in custody. The court relied on the gravity of the charges and the likelihood that the applicant would abscond, reoffend or obstruct justice. The court also referred to the applicant’s status as a former police officer. The detention order did not specify the authorised period of the applicant’s detention.
On an unspecified date in October 2008 the applicant was additionally charged with organisation of prostitution, participation in a criminal organisation and abuse of official powers while being a police officer.
On 30 October 2008 the District Court extended the applicant’s detention on remand for two months, until 7 January 2009. The court noted the gravity of the charges and added that the circumstances did not change since the first detention order. The applicant lodged an appeal claiming, inter alia, that there was no evidence of his involvement in the imputed crimes.
On 25 November 2008 the Supreme Court of the Bashkortostan Republic upheld the detention order and stated as follows:
“While deciding the issue of preventive measure the court is not allowed to examine whether the person concerned is guilty or innocent of the imputed actions. Therefore, the argument of the appeal concerning the lack of evidence for [the applicant’s] guilt cannot serve as a ground for quashing of the detention order.”
On 18 December 2008 the District Court extended the applicant’s detention on remand for one month, until 7 February 2009, noting the gravity of the charges and the risks of absconding and interfering with the course of justice. The applicant appealed.
On 5 February 2009 the Supreme Court of the Bashkortostan Republic upheld the detention order in a summary fashion.
Copies of detention orders for the period between 7 February and 20 July 2009 are missing. It appears that during that period the investigation was completed and the applicant’s case was remitted to the Supreme Court of the Bashkortostan Republic for examination on the merits. The applicant stood trial along with nine co-defendants.
On 15 July 2009 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for three months, until 20 October 2009. The court noted the gravity of the charges filed against the co-defendants and no change in the reasons warranting their detention. The court added that the trial was ongoing. The applicant appealed.
On 24 September 2009 the Supreme Court of Russia upheld the detention order. The court referred to the applicant’s status as a former police officer and held that, if released, he could abscond, reoffend and influence the witnesses and victims.
On 20 October 2009 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for three months, until 20 January 2010. The court referred to the gravity of the charges filed against the co-defendants and the likelihood of their absconding, reoffending and interfering with the course of justice. The court also noted that three out of ten victims had still not been examined as well as 32 out of 123 witnesses. The applicant appealed.
On 22 December 2009 the Supreme Court of Russia upheld the detention order and stated as follows:
“As to the sufficiency of factual information (фактические данные) concerning the co-defendants’ involvement in the crimes ..., this will be determined at the end of the trial.”
On 20 January 2010 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for three months, until 20 April 2010. The court used its previous reasoning and noted that 17 out of 123 witnesses still had not been examined. The applicant appealed.
On 24 March 2010 the Supreme Court of Russia upheld the detention order in a summary fashion.
On 15 April 2010 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for three months, until 20 July 2010. Using its previous reasoning the court noted that 16 out of 123 witnesses still had not been examined. The applicant appealed.
On 21 July 2010 the Supreme Court of Russia upheld the detention order.
On 16 June 2010 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for one month, until 20 August 2010. Based on its usual reasoning it noted that 14 out of 123 witnesses still have not been examined. The applicant appealed arguing, inter alia, that the criminal case against him had been fabricated and there had been no evidence of his involvement in the imputed crimes.
On 18 August 2010 the Supreme Court of Russia dismissed his appeal and held as follows:
“Issues concerning sufficiency or insufficiency of proof for charges brought against the co-defendants ... should be examined by the first-instance court during the trial; hence, those arguments of the co-defendants are groundless.”
On 19 August 2010 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for three months, until 20 November 2010, with its usual reasoning. It noted that 14 out of 123 witnesses had not yet been examined. The applicant appealed.
On 29 September 2010 the Supreme Court of Russia upheld the detention order and made the same statements as in its previous decision of 18 August 2010.
On 15 November 2010 the Supreme Court of the Bashkortostan Republic, by a collective detention order in respect of five co-defendants, extended the applicant’s detention for three months, until 20 February 2011. The court used its previous reasoning and noted the need to hear oral statement of the co-defendants and their final statements and to prepare its judgment. The court added that there was information in the criminal case file supporting a reasonable suspicion of the co-defendants’ involvement in the crimes imputed. The court gave no reasoning for this finding. The applicant appealed.
On 22 December 2010 the Supreme Court of Russia upheld the detention order on appeal.
On 27 December 2010 the Supreme Court of the Bashkortostan Republic convicted the applicant of abuse of official powers, organisation of prostitution, involvement in engaging in prostitution (two counts) and an illegal penetration into a dwelling, and sentenced him to three years and six months’ imprisonment. At the same time the applicant was acquitted of participation in a criminal organisation and one count of involvement in engaging in prostitution. The court also issued a special ruling (частное постановление) and drew the attention of the investigative authorities to the fact that the charges of running a criminal organisation by the co‑defendants were not based on any evidence, thus, the amount of their charges had been “artificially increased” which resulted in protraction of the proceedings.
On 27 April 2011 the Supreme Court of Russia upheld the judgment on appeal.
On 24 May 2011 the Leninskiy District Court of Ufa granted the applicant’s application for release on probation.
On 21 July 2011 the applicant was released.
2. Alleged interference with the applicant’s right of individual petition
On 27 February 2009 the applicant sent his first letter to the Court from remand prison IZ-3/1 of Ufa (Bashkortostan Republic).
On 17 April 2009 the Court sent a letter (with enclosed application form) addressed to the applicant.
On an unspecified date in April 2009 the applicant was transferred to remand prison IZ-3/5 located in the town of Dyurtyuli (Bashkortostan Republic).
According to the applicant, he received the Court’s letter of 17 April 2009 only on 5 October 2009. In support of his allegation he submitted that letter bearing incoming mail stamps in the letter body. It follows from the stamps that the letter was received by the the administration of Ufa remand prison IZ-3/1 on 5 April 2009, and by the administration of Dyurtyuli remand prison IZ-3/5 – on 2 October 2009.
The applicant’s application form of 13 October 2009 and his letter to the Court of 20 December 2010 were accompanied by cover letters from the remand prison with a brief indication of the contents of his letters and the number of pages.
B. Relevant domestic law and practice
1. Code of Criminal Procedure of the Russian Federation of 2001
“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 two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).
2. Directive Decision no. 5 of 10 October 2003 by the Plenum of the Supreme Court
In its Directive Decision no. 5 of 10 October 2003 “On application by courts of general jurisdiction of the commonly recognised principles and norms of international law and international treaties of the Russian Federation”, the Plenum of the Supreme Court of the Russian Federation held as follows:
“14. ... It should be taken into account that the persistence of a reasonable suspicion that an arrested person has committed an offence is a necessary condition for the lawfulness of the arrest. However, this suspicion cannot remain the only reason for a continued detention.”
3. Pre-trial Detention Act (Federal Law no. 103‑FZ of 15 July 1995)
Section 20. Correspondence
“Suspects and defendants may correspond with relatives and other persons, without any limitation on the number of incoming and outgoing letters or telegrams ...
Correspondence by suspects and defendants is to be carried out through the administration of the remand prison and is subject to censorship. Censorship is carried out by the administration of the remand prison and, if necessary, by the official or authority in charge of the criminal case ...
Delivery of incoming letters addressed to a suspect or defendant is carried out by the administration of the remand prison not later than three days from the date of their receipt ..., except public holidays and weekends. If translation of a letter into the official language of the Russian Federation ... is necessary, the period of delivery can be extended for the time needed for translation ...
Letters received for a suspect or defendant after his/her departure from the remand prison shall be forwarded to the departure place not later than three days upon their receipt”.
Section 21. Submissions of proposals, petitions and complaints
“... Proposals, petitions and complaints addressed ... to the European Court of Human Rights is not subject to censorship and shall be dispatched by the administration of the remand prison in a sealed envelope not later that on the next working day after receipt.
Responses to the proposals, petitions and complaints shall be made known to the suspects and defendants against their signature and added to their personnel files [kept by the administration]. A copy of the response shall be made by the administration of the remand prison and handed out to the suspect or defendant upon his/her request and at his/her expense”.
COMPLAINTS
1. The applicant complains under Article 5 § 1 (c) of the Convention that there were no grounds to detain him and that the domestic courts have not had due regard to his arguments.
2. He complains that his continued detention on remand was not justified, and thus contrary to Article 5 § 3 of the Convention;
3. He complains under Article 34 of the Convention that the Court’s letter of 17 April 2009 (with enclosed application form) was handed out to him almost six months after its receipt by the prison authorities.
QUESTIONS TO THE PARTIES
1. Given the refusals of the courts to examine the factual basis of the charges against the applicant in the detention proceedings and the findings made by the Supreme Court of the Bashkortostan Republic in the special ruling (частное постановление) of 27 December 2010, was the applicant’s arrest and detention on remand based on a “reasonable suspicion”, as required by Article 5 § 1 (c) of the Convention (see, mutatis mutandis, Grinenko v. Ukraine, no. 33627/06, §§ 83-84, 15 November 2012; Pichugin v. Russia, no. 38623/03, §§ 125-126, 23 October 2012)? Did the courts examine this issue in the detention proceedings? Was the scope of the judicial control of the lawfulness of the applicant’s detention compatible with the requirements of Article 5 § 4 (see, mutatis mutandis, Kostadinov v. Bulgaria, no. 55712/00, §§ 84-85, 7 February 2008)?
2. Was the length of the applicant’s detention on remand in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? In particular, were there “relevant and sufficient” reasons for the applicant’s continued detention? Did the authorities display “special diligence” in the conduct of the proceedings against the applicant, as required by Article 5 § 3 of the Convention?
3. 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? In particular, when did the remand prison authorities receive the Court’s letter of 17 April 2009 addressed to the applicant and when did they hand the letter out to him? What was the justification for the alleged delay in handing out that letter to the applicant? Was the correspondence between the applicant and the Court monitored or censored by the staff of the detention facilities?
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