FIRST SECTION
DECISION
Application no. 51445/09
Pavel Mikhaylovich ZHEREBIN against Russia
and 9 other applications
(see the “Facts” part of the decision)
The European Court of Human Rights (First Section), sitting on 13 November 2012 as a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Anatoly Kovler,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above applications lodged on the dates indicated in the attached tables,
Having regard to the decision to grant priority to the above applications under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS AND COMPLAINTS
A. Common facts and complaints
1. All the applicants listed in Section C below were prosecuted in Russia for various crimes. All of them were arrested and detained pending investigation and trial (hereinafter referred to as “detention on remand”). Their detention on remand was ordered and extended by the courts. In all cases the courts refused to release the applicants or replace detention on remand with a non-custodial preventive measure. The reasons for extending the applicants’ detention are reproduced in Section C in the tables concerning each application. Some of the applicants were conditionally released pending trial. The detention on remand of the majority of the applicants ended with a judgment imposing a prison sentence. The durations of the applicants’ detention (in increasing order of length) were the following:6 months and 4 days (application no. 24746/06)6 months and 16 days (application no. 61068/10)7 months and 20 days (application no. 51445/09)8 months and 29 days (application no. 21420/11)1 year, 1 month and 15 days (application no. 30975/11)1 year and 6 months (application no. 31349/09)2 years, 1 month and 8 days (application no. 14565/09)2 years, 1 month and 29 days (application no. 53902/09)2 years, 10 months and 10 days (application no. 24702/08)3 years and 13 days (application no. 53346/10).
2. All the applicants complain, at least in essence, that their detention on remand was not justified and/or was excessively long, and thus contrary to Article 5 § 3 of the Convention. Some of them, referring to the same facts, relied on other Convention provisions, in particular on Article 5 § 1 (c).
B. Explanatory note to the tables
3. The tables in Section C below reflect the domestic courts’ reasoning as to why it was necessary to detain the applicants. In almost all cases the detention orders of the first-instance courts were composed of three parts: the first specified the charges against the defendant and the history of previous detention orders, the second summarised the parties’ arguments and the third set out the court’s own reasoning justifying detention. The information in the tables is based primarily on the third part of the domestic detention orders, setting out the courts’ own arguments. Submissions by the parties in the remand proceedings are mentioned only where they were reproduced or expressly referred to in the courts’ own reasoning.
4. Decisions of the second-instance courts were usually shorter; the higher court often limiting itself to confirming that the lower court had not erred in its application of the material and procedural law. Where the higher court amended or supplemented the reasoning of the lower court in any noteworthy manner, it is mentioned in the table.
5. The detention orders are reproduced in Section C so as to reflect the five main elements which are of relevance for the Court’s analysis:
(a) any security risks posed by the applicant (risk of absconding, re-offending, and so on),
(b) specific factual circumstances of the case which confirm the existence of such risks (previous convictions for similar crimes, threats to witnesses, absence of permanent job or residence, for example),
(c) the conduct of the proceedings (need to question an additional witness, to obtain an expert opinion, to hold a face-to-face confrontation with another defendant, etc.),
(d) consideration of alternative preventive measures (bail, house arrest, electronic surveillance, personal sureties, etc.), and
(e) other factual circumstances and legal arguments relied on by the domestic courts.
6. The security risks posed by the applicants (point (a) above) were formulated by the domestic courts in different ways; however, they could always be reduced to three main risks: absconding, interfering with the course of justice (for example by tampering with evidence, or putting pressure on witnesses), or re-offending. They are reproduced in the tables accordingly.
7. The courts’ reasoning on points (b), (c) and (d) was often non-specific; the courts regularly used standard phrases such as “the circumstances have not changed since the last extension of detention on remand” (insofar as point (b) is concerned), “the extension is needed in order to complete the investigation/trial” or “to take certain additional investigative measures” (insofar as point (c) is concerned), and “it was not possible to apply a milder preventive measure” (insofar as point (d) is concerned). The tables indicate the courts’ reasoning only where the detention orders give specific details relevant to the analysis of these aspects of the situation, and not simply the standard wording.
8. The “Other aspects” of the case most often relate to the court’s assessment of the defendant’s medical condition and needs, and of the substance of the case against him or her.
9. The overall length of the detention indicated in Section C is based on the last information received from the applicant; it may prove to have been longer. Similarly, the places of detention indicated in section C below mostly refer to the remand prisons (“IZ” in Russian) where the applicants were detained pending investigation and trial, or to the penal colony where they were serving their sentence (“IK” in Russian).
C. Facts and complaints specific to each application
1. Application no. 51445/09
10. The application was lodged on 22 September 2009 by Pavel Mikhaylovich Zherebin, a Russian national born in 1983. The applicant was detained in IZ 77/2, Moscow. He was prosecuted for having participated in a fight in which several people were injured. The fight was caused by politically-driven animosity between two groups of youths. It appears that the applicant had connections with the National-Bolshevik Party, a political group banned in 2007 for “extremist activities”. The criminal case was opened on 15 December 2008. On 9 March 2009 the investigating authorities formally charged the applicant with crimes punished under 112, 116, 213 of the Criminal Code (hooliganism, beatings, causing of medium-gravity injury to another person). On 28 October 2009 the applicant was convicted and sentenced to four years’ imprisonment. The overall length of the applicant’s detention on remand amounted to seven months and twenty days. The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
10.03.2009 Taganskiy District Court (Moscow)
30.03.2009
Moscow City Court
Reasons
Risks: Absconding; interfering with the course of justice by putting pressure on witnesses.
Specific factual circumstances: gravity and nature of the crimes; no permanent residence in Moscow or in the Moscow region where the applicant was registered (the applicant lived at a friend’s home); the applicant had taken two years’ sabbatical leave from the university where he studied; the applicant had no job, the sources of his income and that of his family were unknown; the applicant had previously been incurred several administrative penalties for public disturbances; the crime was committed late in the evening by a group of people using objects as weapons.
Conduct of the proceedings: no information
Alternative preventive measures: not analysed
Other aspects: The court noted that it was not its task to examine whether the applicant had been implicated in the crimes concerned. It also noted that the applicant’s wife was pregnant.
2nd detention order
27.04.2009
Taganskiy District Court (Moscow)
18.05.2009
Moscow City Court
Reasons
Risks:absconding;interfering with the course of justice by putting pressure on witnesses;reoffending.
Specific factual circumstances: gravity and nature of the crimes concerned; no permanent residence in Moscow; did not live at his officially registered address in the Moscow region; had no job; the crime was committed by a group of people, some of whom had not been identified or were still at large; information on his character was referred to by the investigator.
Conduct of the proceedings: no information
Alternative preventive measures: The defence produced personal sureties by several public figures. The court dismissed those sureties as unreliable, however, because they did not comply with the formal requirements of the law; in particular, the signatures on some of them were not “properly certified”.
Other aspects: the court noted that the defendant had failed to submit any evidence showing that he did not present the security risks identified above. From the court’s decision it is unclear what information on the “applicant’s character” the court referred to. The investigator described the applicant as a member of “an informal organisation that threatened the foundations of the State in the eyes of law-abiding society”, who refused to cooperate with the investigating authorities and had been repeatedly sanctioned for participating in “unlawful demonstrations”.
3rd detention order (trial stage)
29.05.2009
Zamoskvoretskiy District Court (Moscow)
22.07.2009
Moscow City Court
Reasons
Risks: not specified
Specific factual circumstances: gravity and nature of the crimes; the character of the applicant and two co-accused; no permanent place of residence or registration in Moscow or the Moscow Region; the applicant and another co-accused did not live at their officially registered addresses; the applicant and another co-accused had no work.
Conduct of the proceedings: no information
Alternative preventive measures: not mentioned
Other aspects: the court noted that the completion of the investigation did not mean that the reasons for the applicant’s detention on remand had ceased to exist. The formula used was “the circumstances have not changed”.
Decision dismissing an application for release
24.06.2009
Zamoskvoretskiy District Court (Moscow)
21.09.2009
Moscow City Court
(no decision produced by the applicant)
Reasons
Risks: not specified
Specific factual circumstances: gravity and nature of the crimes; the character of the applicant and two co-accused; no permanent place of residence or registration in Moscow or the Moscow Region; the applicant did not live at his officially registered address.
Alternative preventive measures: not mentioned
Conduct of the proceedings: no information
Other aspects: the court noted that the fact that the applicant had become father in the meantime did not justify his conditional release. The formula used was “the circumstances have not changed”.
11. The applicant also maintains that his conviction was based on the written testimony of several witnesses who did not appear in person before the court, that some other witnesses who had identified the applicant on a photo had been briefed by the police about the identity of the perpetrators, that the court did not discontinue the proceedings in respect of one of the counts despite a request by one of the victims for it to do so. The applicant also complained about the severity of the sentence. He relied on Article 6 § 3 (d) of the Convention.
2. Application no. 24746/06
12. The application was lodged on 30 May 2006 by Khamed Kadyrbechevich Turk, a Russian national born in 1964. The applicant was detained in IZ 23/1, Krasnodar. He was prosecuted for unlawful possession of a handgun and ammunition, a crime punishable under Article 221 of the Criminal Code. The case was opened on 19 January 2006 and the applicant was formally charged on the same day. The overall length of the applicant’s detention on remand was six months and four days. The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
23.01.2006, Severskiy District Court (Krasnodar Region)
01.03.2006, Krasnodar Regional Court
Reasons
Risks: risk of absconding (mentioned only in the second- instance court decision).
Specific factual circumstances: Charges are related to unlawful traffic of firearms in the Krasnodar border region.
Conduct of the proceedings: no information
Alternative preventive measures: not analysed
Other aspects: the second-instance court noted that it was not its task to examine whether there was evidence that the firearms belonged to the applicant.
2nd detention order
17.03.2006, Severskiy District Court (Krasnodar Region)
22.03.2006, Krasnodar
Regional Court
Reasons
Risks: absconding
Specific factual circumstances: nature of the crime, the applicant’s personality.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: The defence offered bail of 30,000 Roubles. The court noted that “the term of detention on remand must be sufficient to allow the court to decide whether further detention pending trial was necessary”.
3rd detention order
(trial stage)
25.04.2006, Severskiy District Court (Krasnodar Region)
31.05.2006. Krasnodar Regional Court
Reasons
Risks: not specified
Specific factual circumstances: a crime of medium gravity
Conduct of the proceedings: the court referred to the need to subject the applicant to psychiatric examination and commissioned an in-house examination of his mental health; the court referred to incidents and the applicant’s behaviour; it appears that the court implied that the applicant showed signs of mental disorder.
Alternative preventive measures: not analysed
Other aspects: not specified
13. The applicant can be understood as complaining that he was unable to challenge the Severskiy District Court’s decision of 25 April 2006 ordering his in-house psychiatric examination. He also indicates that he did not participate in the appeal hearing of 31 May 2006. He refers to Articles 5 § 4 and 13 of the Convention in this regard.
3. Application no. 14565/09
14. The application was lodged on 18 February 2009 by Ivan Nikolayevich Kalosha, a Russian national born in 1983. The applicant was detained in IZ 36/1, Voronezh. He was prosecuted for having used counterfeit money for payment, a crime punished under Article 186 of the Criminal Code. The criminal case was opened on 18 January 2007 and the applicant was charged on 27 September 2007. The overall length of the applicant’s detention on remand amounted to two years, one month and eight days. The applicant was convicted by the Kominternovskiy District Court on 15 July 2010 and sentenced to two years and eight months’ imprisonment. The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
Conditional release
24.10.2007, Leninskiy District Court (Voronezh)
6.12.2007, Voronezh Regional Court
Reasons
Detention refused for the following reasons:no previous convictions;permanent residence in Voronezh;permanent job in Voronezh;no sign of any intention to interfere with the course of justice, destroy evidence or abscond;previously always submitted himself to questioning by the investigator;testimony of witness Mr B. that the applicant had put pressure on him was not concrete evidence.
Decision of 24.10.2007 quashed and case referred back to the first-instance court for the following reasons:gravity of the charges;no official registration in Voronezh;the applicant tried to put pressure on Mr B.
1st detention order
21.12.2007, Leninskiy District Court, (Voronezh)
17.01.2008, Voronezh Regional Court
Reasons
Risks: putting pressure on the witness.
Specific factual circumstances: gravity of the crime; no official registration in Voronezh; attempt to put pressure on witnesses, as shown by the testimony of Mr B.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the text of the decision did not specify what sort of threats the applicant had made in respect of Mr B. The court noted that the investigation in the case was over.
2nd detention order
(trial stage)
17.01.2008, Voronezh Regional Court
No information
Reasons
Risks: re-offending; absconding; putting pressure on victims and witnesses.
Specific factual circumstances: gravity of the charges in respect of the four co-defendants; character of the four co-defendants.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court did not specify whether all four co-defendants were inclined to put pressure on the witnesses and victims, and did not identify those witnesses or victims.
3rd detention order
28.05.2008, Kominternovskiy District Court (Voronezh)
No information
Reasons
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: need to question witnesses who had not appeared and examine materials of the criminal case.
Alternative preventive measures: not analysed
Other aspects: The court noted no change in the reasons for detaining the four co-defendants since the last extension.
4th detention order
9.10.2008, Kominternovskiy District Court (Voronezh)
No information
Reasons
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: need to question witnesses who had not appeared, and co-defendants, and examine materials of the criminal case.
Alternative preventive measures: not analysed
Other aspects: The court noted no change in the reasons for detaining the four co-defendants since the last extension.
5th detention order
24.12.2008, Kominternovskiy District Court (Voronezh)
26.02.2009, Voronezh Regional Court
Reasons
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: need to question co-defendants and examine materials of the criminal case.
Alternative preventive measures: not analysed
Other aspects: The court noted that the reasons for detaining the four co-defendants had not changed since the last extension. The applicant sought release on bail or undertaking not to leave the town.
6th detention order
02.04.2009, Kominternovskiy District Court (Voronezh)
No information
Reasons
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: The court noted no change in the reasons for detaining the four co-defendants since the last extension.
7th detention order
09.06.2009, Kominternovskiy District Court (Voronezh)
No information
Reasons
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: The court noted no change in the reasons for detaining the four co-defendants since the last extension.
8th detention order
14.09.2009, Kominternovskiy District Court (Voronezh)
13.10.2009, Voronezh Regional Court
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: The court noted no change in the reasons for detaining the four co-defendants since the last extension.
Conviction
11.11.2009, Kominternovskiy District Court (Voronezh) sentenced the applicant to 9 years’ imprisonment.
9th detention order
29.04.2010, Voronezh Regional Court
Reasons
The conviction was quashed, the case was referred back to the first-instance court and the detention on remand extended for the following reasons:
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: preventive measure applied in respect of four co-defendants.
15. The applicant also complains that the Kominternovskiy District Court’s decision of 28 May 2005 (see above) to extend his detention until 10 October 2008 was unlawful and thus contrary to Article 5 § 1 of the Convention.
4. Application no. 24702/08
16. The application was lodged on 31 March 2008 by Mikhail Dmitriyevich Andryanov, a Russian national born in 1956. The applicant was detained in FBU IK 6, Astrakhan. He was prosecuted under Article 228 of the Criminal Code for five counts of drug trafficking. The evidence against him was obtained mostly through several consecutive “test purchases” involving police undercover agents. The applicant procured or agreed to purchase different amounts of opium for the undercover agents, ranging from less than one gram to almost 10 grams. The criminal case was opened on 21 April 2005. The applicant was arrested on 29 April 2005. The overall length of his detention on remand amounted to two years, ten months and ten days. On 11 December 2007 judge Ye., who had been examining the applicant’s case, resigned, and the case was transferred to another judge, Ch., who started the trial from the beginning. The applicant was convicted by the Leninskiy District Court of Astrakhan on 11 March 2008 and sentenced to six years and six months’ imprisonment. The court excluded two of the offences imputed to him but found him guilty of the other three counts of drug-trafficking. The conviction was upheld by the Astrakhan Regional Court on 15 May 2008. The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
30.04.2005, Kirovskiy District Court (Astrakhan)
No information
Reasons
Risks: re-offending; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; nature of the offences (drug-trafficking); character (previous convictions for similar crimes); no permanent place of work or source of income.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysedOther aspects: none
2nd detention order
(trial stage)
17.10.2005, Leninskiy District Court (Astrakhan)
No information
Reasons
Copy of the detention order is missing
3rd detention order
10.04.2006, Leninskiy District Court (Astrakhan)
No information
Reasons
Copy of the detention order is missing
4th detention order
13.07.2006, Leninskiy District Court (Astrakhan)
17.08.2006 Astrakhan Regional Court
Reasons
Risks: to prevent collusion; to prevent the co-defendants putting pressure on witnesses.
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: thorough examination of the case, questioning of witnesses.
Alternative preventive measures: not analysed
Other aspects: detention extended in respect of seven co-defendants; the court held that it was not its task to assess evidence. It also held that “no evidence that a milder preventive measure could be applied had been submitted”. The court noted that the reasons for detaining the four co-defendants had not changed since the last extension.
Risks: the need to secure the execution of a conviction, to prevent him putting pressure on witnesses.
5th detention order
12.10.2006, Leninskiy District Court (Astrakhan)
No information
Reasons
Risks: to prevent collusion and putting pressure on witnesses
Specific factual circumstances: gravity of charges
Conduct of the proceedings: thorough examination of the case
Alternative preventive measures: not analysed
Other aspects: detention extended in respect of six co-defendants; the court held that it was not its task to assess evidence. It also held that “no evidence that a milder preventive measure could be applied had been submitted”. The court noted that the reasons for detaining six of the co-defendants had not changed since the last extension (the seventh was conditionally released). The court held that it had assessed the co-defendants’ medical condition.
6th detention order
11.01.2007, Leninskiy District Court (Astrakhan)
No information
Reasons
Risks: to prevent collusion and putting pressure on witnesses
Specific factual circumstances:gravity of the charges;character of the co-defendants.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: detention extended in respect of six co-defendants; the court held that it was not its task to assess evidence. It also held that “no evidence that a milder preventive measure could be applied had been submitted”. The court noted that the reasons for detaining the six co-defendants had not changed since the last extension, and stated that it had assessed the co-defendants’ medical condition, family situation and financial means.
7th detention order
12.04.2007, Leninskiy District Court (Astrakhan)
21.06.2007, Astrakhan Regional Court
Reasons
Risks: to prevent collusion and putting pressure on witnesses
Specific factual circumstances:gravity of the charges;character of the co-defendants.
Conduct of the proceedings: not specified (second-instance court mentioned the need to examine witnesses and an expert)
Alternative preventive measures: not analysed
Other aspects: detention extended in respect of six co-defendants; the court held that it was not its task to assess evidence. It also held that “no evidence that a milder preventive measure could be applied had been submitted”. The court noted that the reasons for detaining the six co-defendants had not changed since the last extension, and stated that it had assessed the co-defendants’ medical condition, family situation and financial means.
8th detention order
04.07.2007, Leninskiy District Court (Astrakhan)
06.09.2007, Astrakhan Regional Court
Reasons
Risks: not specified
Specific factual circumstances:gravity of the charges;character of the co-defendants.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: detention extended in respect of five co-defendants. The court also held that “no evidence that a milder preventive measure could be applied had been submitted”, and noted that the reasons for detaining the five co-defendants had not changed since the last extension.
9th detention order
08.10.2007, Leninskiy District Court (Astrakhan)
No information
Reasons
Copy of the detention order is missing
10th detention order
26.12.2007, Leninskiy District Court (Astrakhan)
14.03.2008, Astrakhan Regional Court
Reasons
Risks: re-offending; absconding.
Specific factual circumstances:gravity of the charges;character of the imputed crimes;repetitive character of the crimes imputed to the co-defendants.
The second-instance court added reference to “five episodes”, “ten co-defendants” and “dangerous character” (most likely referring to the crimes imputed to the applicant).
Conduct of the proceedings: not specified in the decision of the first-instance court. The second-instance court referred to the transfer of the case from one judge to another.
Alternative preventive measures: not analysed
Other aspects: detention extended in respect of six co-defendants. The court held that “no evidence that a milder preventive measure could be applied had been submitted”. It noted that the reasons for detaining the six co-defendants had not changed since the last extension. It took note of the co-defendants’ medical condition and of their complaints about harsh conditions of detention. The court further noted that “given the lengthy period of the co-defendants’ [pre-trial detention] there was no need to return the case to the investigating authorities”.
17. According to the applicant, after his arrest he was beaten by officers from the Astrakhan anti-drug police (FSKN); he complains under Article 3 that the officers put pressure on him in order to extract a confession and obtain evidence against his co-defendants. He also alleges that his conviction was based on falsified evidence, that he did not commit the crimes imputed to him, and that he was a victim of police provocation. He relied on Article 6 of the Convention in this regard.
5. Application no. 53902/09
18. The application was lodged on 9 September 2009 by Andrey Olegovich Cheremnykh, a Russian national born in 1969. The applicant was detained in penal colony OIK 38, Minusinsk, Krasnoyarsk Region. He was prosecuted under Article 228 of the Criminal Code for two counts of drug trafficking. He was accused of selling 3.8 and 1.74 grams of heroin to an undercover agent. The applicant was arrested on 9 July 2007 and the criminal case against him was opened on 10 July 2007. The overall length of the applicant’s detention on remand amounted to two years, one month and twenty-nine days. The applicant was convicted by the Oktyabrskiy District Court of Krasnoyarsk on 7 September 2009 and sentenced to thirteen years and six months’ imprisonment. The conviction was upheld by the Krasnoyarsk Regional Court on 8 July 2010 and the sentence reduced to ten years. The facts concerning the applicant’s detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
11.07.2007, Oktyabrskiy District Court (Krasnoyarsk)
No information
Reasons
Risks: re-offending; absconding.
Specific factual circumstances: gravity of the charges; character.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court noted that the prosecution had gathered sufficient evidence to charge the applicant with the imputed crimes. The applicant argued that he had young children, a permanent place of residence and a job. In the opinion of the court, however, those factors were not sufficient to justify a different preventive measure. The court also noted that the applicant had failed to produce documents in support of his claims, and that the applicant’s health condition was compatible with his detention.
2nd detention order
06.09.2007, Oktyabrskiy District Court (Krasnoyarsk)
No information
Reasons
Risks: re-offending; absconding.
Specific factual circumstances: gravity of the charges; character.
Conduct of the proceedings: not specified
Alternative preventive measures: not mentioned
Other aspects: The applicant argued that he had young children, a permanent place of residence and a job, and that he did not intend to flee. However, in the opinion of the court those factors were not sufficient to justify a different preventive measure. The court noted that the reasons for detaining the applicant had not changed since the first detention order. It mentioned the need to perform “the above-mentioned investigative activities”. This can be understood as referring to the submissions of the prosecution that the investigating authorities needed “to question all those who had taken part in the operative and search activities, to examine the material evidence and transmit it for storage, to complement the charges against [the applicant and another co-defendant], to sever the case against the person who had purportedly supplied heroin to the applicant, to obtain personal details about the defendants, to conduct a psychiatric examination of the applicant, to familiarise him with the expert reports, to prepare the bill of indictment and to get the prosecutor’s approval for it”.
3rd detention order
09.11.2007, Oktyabrskiy District Court (Krasnoyarsk)
No information
Reasons
Risks: re-offending; absconding.
Specific factual circumstances: gravity of the charges; character.
Conduct of the proceedings: “need to conduct several investigative actions”.
Alternative preventive measures: not analysed
Other aspects: The court noted that the reasons for detaining the applicant had not changed since the last extension. It also noted that it had not received any evidence in support of the applicant’s claim that he needed a surgical intervention and that his further detention was incompatible with conditions in the remand prison.
4th detention order
26.12.2007, Oktyabrskiy District Court (Krasnoyarsk)
06.03.2008, Krasnoyarsk Regional Court
Reasons
Risks: interfering with the course of justice; absconding.
Specific factual circumstances: gravity of the charges; character; the second-instance court noted that “although the applicant had a permanent place of residence he was likely to abscond”.
Conduct of the proceedings: not specified (“need to conduct several investigative actions”). The second-instance court noted that the investigator had referred to the “large volume of materials in the case file”.
Alternative preventive measures: not analysed
Other aspects: The court noted that the reasons for detaining the applicant had not changed since the last extension. It further noted that the applicant’s health condition was irrelevant to the extension of his detention as the applicant was receiving medical aid in the remand prison. It also referred to the need to conduct “the investigative actions mentioned by the investigator” (which were “to commission an in-house psychiatric examination, to draw up a bill of indictment, and to obtain the prosecutor’s approval for it”).
5th detention order
(trial stage)
07.04.2008, Oktyabrskiy District Court (Krasnoyarsk)
No information
Reasons
Risks: re-offending; absconding.
Specific factual circumstances: gravity of the charges; nature of the imputed crimes (drug-dealing); character.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: none
6th detention order
10.09.2008, Oktyabrskiy District Court (Krasnoyarsk)
No information
Reasons
Risks: re-offending; absconding.
Specific factual circumstances: gravity of the charges; nature of the imputed crimes (drug-dealing); character.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court extended the preventive measure “irrespective of the applicant’s illness”.
7th detention order
13.11.2008, Oktyabrskiy District Court
30.12.2009, Krasnoyarsk Regional Court
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; nature of the imputed crimes (drug-dealing).
Conduct of the proceedings: need to return the case to the investigating authorities.
Alternative preventive measures: not analysed
Other aspects: the court returned the case to the investigating authorities because the applicant’s lawyer had a conflict of interests and had to be replaced, and certain investigative measures had to be taken again.
8th detention order
20.03.2009, Oktyabrskiy District Court (Krasnoyarsk)
30.04.2009, Krasnoyarsk Regional Court
Reasons
Risks: not specified
Specific factual circumstances: gravity of the charges
Conduct of the proceedings: not specified
Alternative preventive measures: not mentioned
Other aspects: The court noted that the reasons for detaining the applicant had not changed since the last extension.
Risks: The second-instance court indicated that “the first-instance court had taken into account the risks of re-offending and absconding”.
Specific factual circumstances: The second-instance court indicated that the first-instance court had taken into account the nature of the crimes imputed to the applicant, and followed the reasoning of the first-instance court for the remainder.
9th detention order
19(?).06.2009, Oktyabrskiy District Court (Krasnodar) Note: the date on the detention order is not legible
No information
Reasons
Risks: not specified
Specific factual circumstances: gravity of the charges nature of the imputed crimes.
Conduct of the proceedings: not specified (“need to verify the applicant’s allegations of innocence”).
Alternative preventive measures: not analysed
Other aspects: The court noted that the reasons for detaining the applicant had not changed since the last extension; the applicant’s health condition was irrelevant since he could receive medical treatment in the remand prison.
19. The applicant alleges that he was ill-treated at the time of his arrest and sustained a knee injury, that the police stole his property, that the legal-aid lawyer assigned to him had a conflict of interests and that the search of his flat was unlawful. He relied on Article 3 of the Convention.
6. Application no. 61068/10
20. The application was lodged on 24 December 2010 by Stanislav Anatolyevich Polyakov, a Russian national born in 1977. The applicant was detained in remand prison IZ 3/1, Ufa, Bashkortostan. He was arrested on 1 May 2010 and prosecuted for drug trafficking under Article 228 of the Criminal Code. The overall length of the applicant’s detention on remand amounted to six months and sixteen days (at the time of the latest extension of his detention). The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
02.05.2010, Leninskiy District Court (Ufa)
No information
Reasons
Detention order is missing
2nd detention order
28.06.2010, Leninskiy District Court (Ufa)
No information
Reasons
Detention order is missing
3rd detention order
12.08.20010, Leninskiy District Court (Ufa)
02.09.2010, Supreme Court of Bashkortostan
Reasons
Risks: re-offending; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; the applicant was a drug addict.
Conduct of the proceedings: “need to examine items seized during the operative and search activities, question witnesses, perform other investigative actions and procedural formalities ..., and draw up a bill of indictment.”
Alternative preventive measures: not analysed
Other aspects: The court noted that the reasons for detaining the applicant had not changed since the last extension.
The second-instance court noted that the first-instance court had “assessed the defendant’s character – he had no previous convictions, was positively regarded [by those around him], had a family, a job and an income, and his father had a second-degree disability. However, [those factors] did not prevent his detention on remand but would be taken into account during the examination [of the criminal case against the applicant] on the merits”.
4th detention order
29.09.2010, Leninskiy District Court (Ufa)
21.10.2010, the Supreme Court of Bashkortostan
Reasons
Risks: re-offending; absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges.
Conduct of the proceedings: not specified; the second-instance court noted that a bill of indictment was to be drawn up and forwarded to the court.
Alternative preventive measures: not analysed
Other aspects: The court noted that the reasons for detaining the applicant had not changed since the last extension, and that the applicant’s state of health was compatible with his detention on remand.
7. Application no. 21420/11
21. The application was lodged on 5 March 2011 by Mikhail Borisovich Shelesnov, a Russian national born in 1956. The applicant was detained in remand prison IZ 77/4, Moscow. Before his arrest he was a businessmen and owned several firms. He lived and worked in the Moscow region, was father to four children (all minors) and had no previous convictions. The applicant was suspected of importing stamping equipment from Austria into Russia under false documents indicating an artificially low price for the equipment. As a result, according to the prosecuting authorities, one of the applicant’s firms had not paid certain customs dues in the full amount. The criminal case was opened on 11 November 2009. On 8 December 2009 the investigator formally warned the applicant that he must remain in the town during the investigation. According to the investigator, in December 2009 the applicant was repeatedly summoned for questioning but failed to appear. In the following months the investigation was interrupted because of the applicant’s illness (he suffered from chronic cardiac problems). According to the investigator, having learnt that the applicant’s medical condition had improved he summoned him again, but the applicant failed to appear. The investigator also learnt that in the meantime the applicant had continued to work and had bought travel tickets to another Russian town and to Munich. On 21 June 2010 the applicant was apprehended, brought to the investigator, questioned, charged under Article 188 of the Criminal Code (“Smuggling”) and placed under arrest. The overall length of the applicant’s detention on remand amounted eight months and twenty-nine days (at the time of the latest extension of his detention). The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
21.06.2010, Tverskoy District Court (Moscow )
No information
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; repeated failure to appear before the investigator; the applicant used his illness as a pretext for not complying with the summonses, but his illness did not prevent him from travelling; attempt to put pressure on witnesses Ms Sh., Ms Z., Ms V., as confirmed by their written testimonies, and on his employees (Mr L., Ms. Sys., Ms Sev., Ms. Kor., Ms. Nik.), who failed to appear for questioning.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: having relied on the results of the questioning of several doctors, the court concluded that the applicant’s health condition had improved, was satisfactory and did not prevent him from participating in the investigative actions.
2nd detention order
11.08.2010, Tverskoy District Court of Moscow
08.09.2010, Moscow City Court
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of charges; repeated failures to appear before the investigator; the applicant used his illness as a pretext for not complying with the summonses, but his illness did not prevent him from travelling to Bryansk and buying tickets to Munich; attempt to put pressure on witnesses Ms Sh., Ms Z., Ms V., as confirmed by their written testimonies, and on his employees (Mr L., Ms. Sys., Ms Sev., Ms. Kor.), who failed to appear for questioning.
Conduct of the proceedings: not specified
Alternative preventive measures: the court did not see any reason to accept the bail proposed by the defence (RUB 5,000,000 or ~ EUR 125,000).
Other aspects: the court noted that the crimes imputed to the applicant did not concern his business activities.
Relying on the medical certificates from the remand prison, the court concluded that the applicant’s state of health was satisfactory and that he was receiving adequate medical care in the prison hospital.
3rd detention order
20.10.2010, Tverskoy District Court, Moscow
No information
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; character of the applicant; repeated failure to appear before the investigator; the applicant was using his illness as a pretext for not complying with the summonses, but his illness did not prevent him from travelling to Bryansk and buying tickets to Munich; attempt to put pressure on witnesses Ms Sh., Ms Z., Ms V., as confirmed by their written testimonies, and on his employees (Mr L., Ms. Sys., Ms. Kor.) who failed to appear for questioning.
Conduct of the proceedings: the court stressed the complexity of the case and the “international” and “inter-regional” character of the offences imputed to the applicant; the court also referred to the need to conduct investigative actions (the investigator referred to the need to question 20 witnesses, conduct 20 seizures, obtain expert reports commissioned earlier, conduct 22 forensic examinations, request legal assistance from the authorities in Austria, obtain and analyse the results of the search activities, examine documents and computer materials seized during the searches, decide on further procedural steps, identify possible accomplices, and charge them if needed).
Alternative preventive measures: the court noted that it did not see any reason to accept bail or personal sureties from a third party (an MP) as proposed by the defence.
Other aspects: The court noted that it had taken into account the applicant’s chronic illnesses, but that the applicant’s state of health was satisfactory and that he was receiving adequate medical care in the prison hospital.
4th detention order
20.12.2010, Tverskoy District Court (Moscow)
24.01.2011, Moscow City Court
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; repeated failure to appear before the investigator; the applicant was using his illness as a pretext for not complying with the summonses, but his illness did not prevent him from travelling to Bryansk and buying tickets to Munich; attempt to put pressure on witnesses Ms Sh., Ms Z., Ms V., as confirmed by their written testimonies, and on his employees (Mr L., Ms. Sys., Ms Sev., Ms. Kor.), who failed to appear for questioning.
Conduct of the proceedings: the need to question 30 witnesses, obtain expert reports commissioned earlier, obtain responses to the requests for legal assistance from Austria and Lithuania and translate them, continue the examination of documents and computer materials, decide on further procedural steps, identify possible accomplices, and charge them if needed. The court also noted the extreme complexity of the case.
Alternative preventive measures: the court noted that it did not see any reason to accept the bail or personal sureties proposed by the defence.
Other aspects: The court noted that the imputed offences did not relate to the applicant’s “business activities”, that it had taken into account the applicant’s chronic illnesses, but that the applicant’s state of health was satisfactory and he was receiving adequate medical care in the prison hospital.
8. Application no. 30975/11
22. The application was lodged on 18 April 2011 by Victor Mikhaylovich Yurin, a Russian national born in 1975. The applicant was detained in remand prison IZ 61/1, Rostov-on-Don. He had a previous conviction for drug trafficking. According to the applicant, he stopped taking drugs several months before his arrest and had been undergoing treatment. According to the detention order, the applicant was suspected of selling 1.5 grams of a mixed substance containing heroin to an undercover police agent on 23 July 2009. The applicant was arrested on 24 February 2010 and charged on 4 March 2010 under Article 228 of the Criminal Code. The overall length of the applicant’s detention on remand amounted to one year, one month and fifteen days (at the time of the last extension). The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
26.02.2010, Kirovskiy District Court (Rostov-on-Don)
No information
Reasons
Risks: absconding; interfering with the course of justice; re-offending.
Specific factual circumstances: gravity of the charges; nature of the offences (drug-dealing); the applicant had no work; the applicant did not live at his officially registered address; previous conviction.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: none
2nd detention order
23.04.2010, Kirovskiy District Court (Rostov-on-Don)
No information
Reasons
Risks: absconding; re-offending.
Specific factual circumstances: gravity of the charges; nature of the offences (drug-dealing); the applicant had no job and did no socially useful work; the applicant had no legal source of income; the applicant did not live at his officially registered address; previous conviction related to drug trafficking.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court noted that the applicant’s state of health did not rule out detention, and that the fact that he was registered in the Rostov Region did not justify his release.
3rd detention order
23.06.2010, Kirovskiy District Court (Rostov-on-Don)
No information
Reasons
Risks: absconding; re-offending.
Specific factual circumstances: gravity of the charges; nature of the offences (drug-dealing); previous conviction related to drug trafficking.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court noted that the applicant had a third-degree disability.
4th detention order
24.08.2010, Kirovskiy District Court (Rostov-on-Don)
No information
Reasons
Risks: absconding; re-offending.
Specific factual circumstances: gravity of the charges; character; nature of the offences (drug-dealing).
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court noted the applicant’s third-degree disability, the fact that he had a permanent residence in Rostov-on-Don, that he was officially registered at another address in the Rostov Region, and that the remand prison authorities had given him a satisfactory character reference.
5th detention order
(trial stage)
12.10.2010, Kirovskiy District Court (Rostov-on-Don)
No information
Reasons
None (the court set the date for the first hearing and held that the applicant should remain in custody as his detention was lawful).
6th detention order
20.10.2010, Kirovskiy District Court (Rostov-on-Don)
16.11.2010, Rostov Regional Court
Reasons
Risks: not specified
Specific factual circumstances: gravity of the charges; previous conviction.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: the court noted that “the defence had not submitted any additional objective documentary evidence that had not been known at the time when the preventive measure was chosen which could influence the court’s conclusion [that there was no need to apply a different preventive measure]”.
9. Application no. 53346/10
23. The application was lodged on 23 July 2010 by Tatyana Yuryevna Chernova, a Russian national born in 1980. The applicant was detained in remand prison IZ 14/1, Yakutsk. She had no previous convictions and resided permanently in Yakutsk town, where she worked as an accountant. According to the investigating authorities, the applicant was a member of a criminal group which forged official documents and facilitated the unlawful restitution to their owners of driving licences seized by the police for various road traffic offences. The services of that criminal enterprise were advertised through a local newspaper. On 16 March 2007 a criminal case was opened. The applicant was suspected of having participated in 43 counts of fraud and forgery (Articles 159 and 327 of the Criminal Code). She alleges that she received no summons and was unaware that a criminal case had been opened. On 24 May 2007 the police put the applicant’s name on the wanted list. On 20 September 2007 she was arrested in the basement of the house where the director of the firm she worked for lived. The trial started on 2 July 2008. The overall length of the applicant’s detention on remand amounted to three years and 13 days (at the time of the last extension). The facts concerning her detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
21.09.2007, Yakutsk Town Court (Republic of Sakha-Yakutiya)
28.09.2007, Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges (medium gravity); the applicant was put on the wanted list; the applicant did not live at her officially registered address and was not to be found at her usual place of residence; the applicant was not in fact working; according to her employer she had taken sabbatical leave and was unreliable; she herself did not deny that she was unemployed.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: none
2nd detention order
15.11.2007, Yakutsk Town Court (Republic of Sakha-Yakutiya)
19.12.2007, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding; re-offending; interfering with the course of justice.
Specific factual circumstances: gravity of the charges (medium gravity); the applicant had no source of income; the applicant had no permanent residence.
Conduct of the proceedings: not specified (the second-instance court noted that at that stage the investigation against the applicant concerned eight counts of fraud and forgery).
Alternative preventive measures: not analysed
Other aspects: none
3rd detention order
10.01.2008, Yakutsk Town Court (Republic of Sakha-Yakutiya)
25.01.2008, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding.
Specific factual circumstances: gravity of the charges (medium gravity); the applicant was on the wanted list.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: none
4th detention order
07.03.2008 Yakutsk Town Court (Republic of Sakha-Yakutiya)
21.03.2008, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: interfering with the course of justice; re-offending.
Specific factual circumstances: gravity of the charges (serious crimes); nature of the crimes (on-going criminal activity); the applicant went into hiding; the applicant had no job or permanent place of residence; the second-instance court added a reference to the applicant’s “character”.
Conduct of the proceedings: the investigator needed to reformulate the charges against the applicant and give her a copy of the case file (in 35 volumes) to prepare for the trial.
Alternative preventive measures: not analysed
Other aspects: the court noted that it was not its task to assess the evidence against the applicant and decide whether the charges against her were well-founded.
5th detention order
11.06.2008 Yakutsk Town Court (Republic of Sakha-Yakutiya)
25.06.2008, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding; interfering with the course of justice; re-offending.
Specific factual circumstances: gravity of the charges (serious crimes); no permanent place of residence; the second-instance court added that the applicant had been placed on the wanted list, gone into hiding and been arrested during a search operation.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: none
6th detention order
(trial stage)
04.07.2008 Yakutsk Town Court (Republic of Sakha-Yakutiya)
No information
Reasons
None (the court set the date for the first hearing and held that the preventive measure in respect of all six defendants should remain unchanged). Preventive measures were confirmed in respect of five other co-defendants.
7th detention order
17.07.2008, Yakutsk Town Court (Republic of Sakha-Yakutiya)
01.08.2008, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges (serious crimes, 42 counts); the applicant gave the court several addresses where she could reside if released; the court concluded that she had no permanent place of residence in Yakutsk; the applicant had been placed on the wanted list, had absconded and had been arrested during a search operation.
Conduct of the proceedings: not specified
Alternative preventive measures: the applicant’s employer offered to stand bail for the applicant, but the court declined the offer.
Other aspects: the applicant’s medical condition was compatible with her detention. The court extended the detention of one of the co-defendants.
Application for release rejected
11.09.2008, Yakutsk Town Court (Republic of Sakha-Yakutiya)
No information
Reasons
On 11.09.2008 the applicant started bleeding in the courthouse. An ambulance was called; a doctor examined the applicant on the spot and recommended urgent consultation of a gynaecologist. Referring to that episode, her lawyer requested the applicant’s release, but the court refused on the ground that “urgent consultation with a gynaecologist” did not mean that the applicant needed urgent hospitalisation and could not get the treatment she needed in the remand prison.
8th detention order
24.03.2009, Yakutsk Town Court (Republic of Sakha-Yakutiya)
10.04.2009, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of charges (42 counts of serious crimes); character and behaviour; the applicant went into hiding, she was placed on the wanted list and was discovered and arrested during a lawful search; the applicant had no work and no regular source of income (for more details see “Other aspects”).
Conduct of the proceedings: not specified
Alternative preventive measures: the applicant’s employer asked the court to release the applicant on bail and offered to stand bail, but the court declined the offer.
Other aspects: the court noted that the applicant’s medical condition was compatible with her detention. The fact that she suffered from depression did not justify her release. The applicant’s employer asked the court to release the applicant on bail; he offered to stand bail and told the court that the applicant could return to work at the firm. He also said that the firm would give her a flat to live in; however, having checked the documents submitted by the employer the court found that they were unreliable, and that the flat proposed did not belong to the firm. The court further noted that the applicant herself had told the investigator at the first questioning that she was not working.
At the preliminary hearing she had been unable to indicate where she would live if released. Her officially registered address was not where she intended to live; she was registered at her friends’ flat only formally. She asked the police to register her at another address, but did not explain on what legal basis she would move there. The court concluded that the applicant did not have a permanent residence in Yakutsk. The court considered positive aspects of the applicant’s character submitted by a number of NGOs but ruled that they were inconclusive. The applicant’s lawyer had produced written petitions submitted by the victims of the applicant’s crimes and certified by a notary public. In those petitions the victims asked the court to release the applicant. However, the court rejected them as unreliable since when the victims had been questioned at the court, they had not made any requests for the applicant’s release.
9th detention order
25.06.2009, Yakutsk Town Court (Republic of Sakha-Yakutiya)
10.07.2009, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: absconding; interfering with the course of justice; re-offending.
Specific factual circumstances: gravity of the charges (42 counts of serious crimes); character and behaviour; young age; the applicant went into hiding, she was placed on the wanted list and was discovered and arrested during a lawful search; the applicant had no work or regular source of income.
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed (but see below)
Other aspects: The applicant’s employer asked the court to release the applicant; he offered personal surety and submitted to the court a written certificate attesting that the applicant was working at the firm, with a copy of her official service record. However, the court did not accept those documents; it noted that some of the entries in the official service record were incomplete and not endorsed by the director of human resources. The court held that to prove that the applicant had worked at the firm it would require a protocol of the general meeting of the employees of the firm, signed by every employee, confirming that the applicant had a permanent place of work at the moment of her arrest. The court also noted that in one of the previous hearings the applicant had given uncertain answers about when she had started working at the firm, the dates of the alleged sabbatical leave, and other aspects of her work. At the first questioning the applicant had told the investigator that she was not working. The court concluded that the applicant did not have a job. It further observed that earlier the applicant had been unable to indicate where she would live if released, and had given several possible addresses. Her officially registered address was that of her friends’ flat, but she did not intend to live there if released. Since she had not been living at her officially registered address before the arrest, she she was unlikely to live permanently at another address either, even if she was registered there. The defence did not adduce any document showing on what legal basis the applicant would move into the flat where, according to the defence, she planned to live if released. The court concluded that the applicant did not have a permanent place of residence in Yakutsk. Lastly, the court considered the positive aspects of the applicant’s character as submitted by a number of NGOs, but ruled that they were inconclusive. The applicant’s lawyer submitted written petitions to the court from victims of the applicant’s crimes, certified by notary public, asking the court to release the applicant. However, the court rejected them as unreliable since when the victims had been questioned at the court, they had not made any such requests. The court noted that the applicant’s medical condition (post-traumatic encephalopathy and neurosis) was compatible with her detention.
10th detention order
23.09.2009, Yakutsk Town Court (Republic of Sakha-Yakutiya)
21.10.2009, the Supreme Court of Sakha-Yakutiya
Risks: see 9th detention order
Specific factual circumstances: see 9th detention order
Conduct of the proceedings: not specified
Alternative preventive measures: personal sureties of the director of the firm where she worked were not accepted.
Other aspects: See 9th detention order. In addition, the court examined the applicant’s record from the remand prison, where she was subjected to four disciplinary penalties for various breaches of internal rules, including insults to prison officials and an incident when she threatened to pour water onto a food dispenser. The court concluded that it showed her inclination to criminal behaviour and the possible risk of reoffending. The court also noted that it had no proof that the flat where the applicant was to live in the event of her conditional release belonged to the firm.
11th detention order
23.12.2009, Yakutsk Town Court (Republic of Sakha-Yakutiya)
12.03.2010, the Supreme Court of Sakha-Yakutiya
Reasons
Risks: see 9th detention order
Specific factual circumstances: see 9th detention order
Conduct of the proceedings: not specified
Alternative preventive measures: the applicant’s employer offered to stand bail or personal surety for her, but the court declined the offer on the ground that the director was not in a position to guarantee the applicant’s good behaviour as she had been found hiding in the basement of his house.
Other aspects: see 9th detention order. The court also examined the applicant’s state of health and diagnosis in more detail (post-traumatic encephalopathy, neurosis). It observed that at the hearing of 30 October 2009 the applicant had tried to transmit a handwritten note to one of the co-defendants which had been seized by a convoy officer. In that note the applicant asked the co-defendant “to get a sick-leave certificate” in order to skip a hearing on Monday. The court also noted that the applicant had repeatedly created disturbances in the courtroom. It concluded that the note, together with her behaviour, showed that she was inclined to influence the other participants in the trial.
12th detention order
23.03.2010, Yakutsk Town Court (Republic of Sakha-Yakutiya)
No information
Reasons
Risks: see 9th detention order
Specific factual circumstances: see 9th and 11th detention orders
Conduct of the proceedings: not specified
Alternative preventive measures: not analysed
Other aspects: see 9th and 11th detention orders
13th detention order
15.06.2010, Yakutsk Town Court (Republic of Sakha-Yakutiya)
No information
Reasons
Risks: see 9th detention order
Specific factual circumstances: see 9th and 11th detention orders
Conduct of the proceedings: not specified
Alternative preventive measures: the court ruled that release on bail was impossible as the applicant had no permanent source of income. House arrest was inappropriate as the applicant was accused of 34 (sic) serious crimes and repeatedly disturbed the proceedings in the courtroom.
Other aspects: see 9th and 11th detention orders
24. According to the applicant, her arrest and first questioning were conducted with egregious violations of the rules of procedure. She claims that one of the investigators tapped her on the head, threatened her with violence and insulted her in the presence of other persons, and forced her to sign procedural documents. Witnesses in her case were also threatened by the investigators. The judge who examined her case was the brother of one of the witnesses. The trial was conducted with an “accusatory bias”. Although the case was not a complex one, the investigation and trial were extremely lengthy. The applicant relies on Article 3 and Article 6 § 1 of the Convention in connection with those facts.
10. Application no. 31349/09
25. The application was lodged on 10 March 2009 by Igor Lvovich Meshcheryakov, a Russian national born in 1966. The applicant was detained in remand prison IZ 25/1, Vladivostok. Before his arrest he had no previous convictions and was permanently resident in Vladivostok, where he worked as vice-governor of the Primorskiy Region and acting head of the Territorial Department of the Federal Property Agency. In the government of the Primorskiy Region the applicant was responsible inter alia for organising privatisation tenders for federal property. According to the investigating authorities, from July 2003 until June 2007 the applicant manipulated tenders concerning several pieces of real-estate; as a result, they were seriously undervalued and sold for too low a price. It appears that the criminal investigation into the transactions in question was opened on 6 February 2007. On 5 December 2007 the applicant was charged with fraud under Article 159 of the Criminal Code. Later the charges were supplemented and the applicant was also charged, under Articles 174 and 210, with money laundering and criminal enterprise. The overall duration of the applicant’s detention on remand amounted to one year and six months (at the time of the last extension). The facts concerning his detention on remand are summarised in the table below.
Decisions
1st instance court
2nd instance court
1st detention order
07.12.2007, Leninskiy District Court (Vladivostok)
No information
Reasons
Copy of the detention order is missing
2nd and subsequent detention orders
Unspecified dates, Leninskiy District Court (Vladivostok)
No information
Reasons
Copies of the detention orders are missing
Last detention order
26.11.2008, Primorskiy Regional Court
11.02.2009, Supreme Court of Russia
Reasons
Risks: absconding; interfering with the course of justice.
Specific factual circumstances: gravity of the charges; not all members of the criminal group were arrested: one of them (Mr St.) absconded and was put on an international wanted list; the crimes imputed to the applicant were related to his position in the government of the Primorskiy Region; he had not been dismissed from his position; the applicant had an international passport, permitting foreign travel, with a valid Shengen visa. If released, he “would be unconditionally entitled to retrieve his documents from the investigator” and “would thus be free to leave the country and flee from justice”. The Supreme Court, however, considered that this last circumstance was irrelevant and should not serve as a ground for extending his detention.
Conduct of the proceedings: the case is complex: the applicant and his seven co-defendants were charged with several crimes; the case concerns a criminal enterprise; the case file runs to 150 volumes; charges could be brought against new persons. The charges against the applicant were supplemented three times and the factual material on which those charges were based continues to grow.
Alternative preventive measures: not analysed
Other aspects: the court noted that the gravity of the charges and the severity of the possible sentence in themselves sufficed to conclude that the applicant would be tempted to flee or to interfere with the course of justice. It further noted that the applicant had a permanent place of residence, and that he had a minor child in his care. The court also noted that it was not its task at that stage to assess whether the person was guilty of the crimes with which he was charged.
THE LAW
A. The alleged violation of Article 5 §§ 1 (c) and 3 of the Convention
1. The applicants complained under Article 5 §§ 1 (c) and 3 of the Convention that their detention on remand was unjustified and/or excessively long. In so far as relevant, those provisions provide as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
2. The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) and Rule 61 § 2 of the Rules of the Court, to give notice of this part of the application to the respondent Government.
B. Other complaints
3. Some of the applicants (application nos. 51445/09, 24746/06, 14565/09, 24702/08, 53902/09, and 53346/10) also raised additional complaints about various alleged deficiencies in the criminal proceedings against them, the lawfulness of their detention on remand, and other matters. The Court has given careful consideration to these grievances in the light of all the material in its possession and considers that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remaining parts of the applications must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints concerning their detention on remand pending investigation and trial in their respective cases;
Decides, pursuant to Rule 61 § 2 (a) and (b) to seek the views of the parties on whether the applications under examination result from the existence of a structural or systemic problem or other similar dysfunction of the national legal system;
Declares the remainder of the applications nos. 51445/09, 24746/06, 14565/09, 24702/08, 53902/09 and 53346/10 inadmissible.
Søren NielsenIsabelle Berro-Lefèvre
RegistrarPresident
Full & Egal Universal Law Academy