Communicated on 26 May 2015
FIRST SECTION
Application no. 18232/11
Florid Railyevich VAKHITOV
against Russia
and 2 other applications
(see list appended)
A. Common facts and complaints
The applicants listed in Section B below were prosecuted in Russia for various crimes and were considered to be in hiding. Their search was initiated and the domestic courts ordered in absentia their detention. Once arrested, they were detained on the basis of these detention orders for more or less long periods of time until the domestic courts further extended their detention.
All the applicants complain, at least in essence, that after their respective arrests they were not promptly brought before a judge in breach of Article 5 § 3 of the Convention. Some of them, referring to the same facts, relied on other Convention provisions (for more details see Appendix below).
B. Facts specific to each application
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 18232/11, lodged by Mr. Vakhitov
The applicant is a Russian national born on 16 August 1986 who lives in Sterlitamak, Perm Region.
On 16 February 2010 the investigation in the applicant’s case was completed and the case was sent to the Sovetskiy District Court of Ufa for trial.
On 19 February 2010 the trial court scheduled the first hearing for 4 March 2010.
On 26 February 2010 the applicant and his lawyer were notified about the hearing by a simple letter. According to the applicant, they had never received this letter and could not attend the hearing of 4 March 2010.
On 4 March 2010 the trial court ordered their compulsory attendance.
On 18 March 2010 the trial court sent its order on the applicant’s compulsory attendance to the bailiffs of Tujmazu. This letter was received by the bailiff service only on 20 March 2010.
On 19 March 2010 the trial court having noted that the applicant failed to appear decided to remand him in custody. According to the applicant, he and his lawyer had never been notified about the hearing of 19 March 2010.
On 24 March 2010 the Tujmazinskiy bailiff service returned the order issued by the trial court on 4 March 2010 without enforcement in view of its receipt after the deadline established for its execution.
On 29 March 2010 this reply was received by the trial court.
On 14 April 2010 the applicant was arrested in accordance with the order of 4 March 2010 and placed in a temporary detention centre in Tajmazinskiy district. On 15 April 2010 he was transferred to Ufa.
On 19 April 2010 the applicant’s lawyer lodged an appeal against the detention order of 19 March 2010.
On 28 April 2010 the judge responsible for the applicant’s case held that the measure of restraint imposed on the applicant should remain unchanged. The applicant and his lawyer were neither notified, nor present at this hearing.
On 10 May 2010 the applicant supplemented his appeal lodged against the decision of 19 March 2010.
On 25 May 2010 the applicant was released at the hearing under an undertaking not to leave his place of residence.
On an unspecified date the President of the Sovetskiy District Court confirmed in a letter sent to the applicant’s lawyer that the summonses to the hearing of 4 March 2010 were sent to the applicant and his representative on 26 February 2010 by ordinary post and that the case-file did not contain any indication that they had effectively been received by them.
On 26 August 2010 the Supreme Court of the Bashkortostan Republic confirmed the decision of 19 March 2010. It found that the applicant was duly apprised of the hearings of 4 and 19 March 2010 at the place of his residence.
On 15 March 2011 the trial court found the applicant guilty and sentenced him to imprisonment term. The period of his detention between 15 April 2010 and 25 May 2010 was included in his sentence.
2. Application no. 42945/11, lodged by Mr. Bogdashkin
The application is a Russian national born on 1 January 1986 who lives in Krasnokamensk, Krasnoyarsk region.
On 28 September 2010 the judge of the peace of the judicial district no. 94 postponed the examination of the applicant’s criminal case to 11 October 2010 in view of his absence from the hearing without justification. According to the applicant, he was not informed about the hearing.
On 11 October 2010 the judge of the peace decided to suspend the proceedings and ordered the applicant’s search. He also held that once apprehended the applicant should be remanded in custody. On the same day, the applicant’s name was placed on the wanted list.
On 4 March 2011 the applicant was apprehended by police and placed in a temporary detention centre in Kuraginskiy district. According to the applicant, the detention record was only drawn up four hours after his de facto apprehension.
On 6 March 2011 he was transferred to Minusinsk, Krasnoyarsk region.
On 11 March 2011 the applicant complained to the prosecutor of the Krasnoyarsk region about the circumstances of his apprehension and in particular of the police officers’ failure to inform him about the reasons for his arrest.
On 6 April 2011 the prosecutor rejected this complaint on the ground that the actions of the police officers were lawful.
On 12 April 2011 the applicant was convicted by the trial court for an attempted murder and sentenced to one year and nine months’ imprisonment.
On 18 April 2011 the applicant challenged the refusal by the prosecutor before the Kuraginskiy District Court.
On 21 April 2011 his complaint lodged against the decision of the prosecutor of 6 April 2011 was rejected by the Kuraginskiy District Court on the ground that the proceedings in the applicant’s case were over.
3. Application no. 31596/14, lodged by Mr. Aslanyan
The applicant is a Russian national born on 25 June 1973 who lives in Krasnodar.
On 14 May 2013 the Oktyabrskiy District Court of Krasnodar issued a detention order in absentia in respect of the applicant whose name had previously been placed on the international wanted list. According to this decision, the applicant, once apprehended, was to be remanded in custody for two months.
On 11 July 2013 the applicant was apprehended in accordance with the aforementioned decision.
On 4 September 2013 the Oktyabrskiy District Court further extended the applicant’s detention. The applicant was present at the hearing. The district court held that the applicant’s guilt was confirmed, apart from his own testimonies, by other evidence collected by the investigation.
On an unspecified date the applicant challenged the detention order of 4 September 2013. He notably referred to Article 5 § 3 of the Convention arguing that the authorities failed to promptly bring him before a judge after his apprehension on 11 July 2013. He further referred to Article 6 § 2 of the Convention considering that the wording used in the detention order ran counter to the presumption of innocence.
On 16 October 2013 the Krasnodar Regional Court upheld the aforementioned detention order on appeal. It does not seem that the Regional Court addressed any of the applicant’s arguments.
1. COMMON QUESTIONS
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Were the applicants brought promptly before a judge or other officer authorised by law to exercise judicial power following their respective arrests, as required by Article 5 § 3 of the Convention (see Garabayev v. Russia, no. 38411/02, § 101, 7 June 2007; Poghosyan v. Armenia, no. 44068/07, § 70, 20 December 2011; Ladent v. Poland, no. 11036/03, § 15, 18 March 2008; Salih Salman Kiliç v. Turkey, no. 22077/10, §§ 25-28, 5 March 2013)?
3. The Government is invited to provide information on the legal framework governing the situation of persons who had been arrested in absentia and subsequently detained on the basis of such arrest warrant (see, for instance, Salih Salman Kılıç v. Turkey, no. 22077/10, §§ 10-11, 5 March 2013). In particular, the Government is invited to indicate whether the Code of Criminal Procedure provides for a possibility for a court of a different territorial jurisdiction to order a suspect’s detention pending his or her transfer before a court competent to examine his or her case.
CASE SPECIFIC QUESTIONS
1. Application no. 42945/11, lodged by Mr Bogdashkin
Was the applicant’s detention between 4 March and 12 April 2011 in conformity with the requirements of Article 5 § 1 of the Convention?
Was the applicant informed promptly of the reasons for his arrest and of any charge against him, as required by Article 5 § 2 of the Convention (see Ladent v. Poland, no. 11036/03, § 63, 18 March 2008)?
Did the applicant have at his disposal an effective procedure to enable him to challenge the lawfulness of his detention in the above period, as required by Article 5 § 4 of the Convention? The Government is invited to indicate whether the person gone into hiding has a possibility to challenge the arrest warrant issued in his or her absence. In particular, the Government is invited to indicate when the detention order of 11 October 2010 was served on the applicant.
2. Application no. 31596/14, lodged by Mr Aslanyan
Given the wording of the decision of 4 September 2013 adopted by the Oktyabrskiy District Court of Krasnodar, was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case (see Matijašević v. Serbia (no. 23037/04, §§ 47-51, ECHR 2006‑X)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
Complaint under Art. 5 § 1 (the period complained of)
Other complaints
18232/11
25/02/2011
Florid Railyevich VAKHITOV
16/08/1986
Sterlitamak, Perm region
no
no
42945/11
15/06/2011
Maksim Andreyevich BOGDASHKIN
01/01/1986
Krasnokamensk, Krasnoyarsk region
The applicant complains about his unlawful detention between 4 March and 12 April 2011
Relying on Article 5, the applicant complains that the detention record following his apprehension on 4 March 2011 was only drawn up four hours after his actual apprehension.
Relying on Article 5 § 2, the applicant complains about the authorities’ failure to inform him about of the reasons for his arrest
The applicant complains that he did not have an effective remedy in respect of his unlawful detention between 4 March and 12 April 2011
31596/14
16/04/2014
Karnik Mkrdychevich ASLANYAN
25/06/1973
Krasnodar
Andrey Borisovich TOLSTYKH
no
Relying on Article 6 § 2, the applicant complains about a violation of his right to the presumption of innocence on account of the district court’s conclusion about his guilt in the detention order of 4 September 2013
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