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                             THIRD SECTION
                      CASE OF SMIRNOVA v. RUSSIA
               (Applications No. 46133/99 and 48183/99)
                             JUDGMENT <*>
                       (Strasbourg, 24.VII.2003)
       In the case of Smirnova v. Russia,
       The European Court of Human Rights (Third Section), sitting  as
   a Chamber composed of
       Mr G. Ress, President,
       Mr I. Cabral BARRETO,
       Mr {R. Turmen} <**>,
       Mr {B. Zupancic},
       Mrs M. Tsatsa-Nikolovska,
       Mr K. Traja,
       Mr A. Kovler, judges,
       and Mr V. Berger, Section Registrar,
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
       <**>  Здесь  и  далее  по  тексту слова на  национальном  языке
   набраны латинским шрифтом и выделены фигурными скобками.
       Having deliberated in private on 6 February and 3 July 2003,
       Delivers the following judgment, which was adopted on the last-
   mentioned date:
       1.  The  case  originated in 2 applications (nos. 46133/99  and
   48183/99)  against  the Russian Federation lodged  with  the  Court
   under  Article  34  of the Convention for the Protection  of  Human
   Rights  and Fundamental Freedoms ("the Convention") by two  Russian
   nationals,  Ms  Yelena  Pavlovna Smirnova  and  Ms  Irina  Pavlovna
   Smirnova  ("the  applicants"), on 9 November 1998  and  31  October
   1998 respectively.
       2.  The  applicants alleged that their pre-trial detention  and
   the  investigation of the criminal case against them had  been  too
   long.  The  first applicant also complained about a withholding  of
   her identity paper by investigating authorities.
       3.  The applications were allocated to the Third Section of the
   Court  (Rule  52 з 1 of the Rules of Court). Within  that  Section,
   the  Chamber that would consider the case (Article 27 з  1  of  the
   Convention) was constituted as provided in Rule 26 з 1.
       4.   The  Chamber  decided  to  join  the  proceedings  in  the
   applications (Rule 43 з 1).
       5.  By  a  decision of 3 October 2002, the Court  declared  the
   applications partly admissible.
       6. A hearing took place in public in the Human Rights Building,
   Strasbourg, on 6 February 2003 (Rule 59 з 3).
       There appeared before the Court:
       a) for the Government
       Mr  P. Laptev, Representative of the Russian Federation in  the
   European Court of Human Rights, Agent,
       Mr Y. Berestnev Counsel,
       Mr O. Ankudinov,
       Ms E. Kryuchkova,
       Mr S. Razumov,
       Mr V. Vlasikhin, Advisers;
       b) for the applicants
       Ms L. Anstett-Gardea, Counsel,
       Ms A. Mace, Adviser.
       The Court heard addresses by Mrs Anstett-Gardea and Mr Laptev.
                               THE FACTS
                   I. The circumstances of the case
       7.  The applicants, Ms Yelena Pavlovna Smirnova ("Y.S.") and Ms
   Irina  Pavlovna  Smirnova  ("I.S.")  are  twin  sisters.  They  are
   Russian nationals, who were born in 1967 and live in Moscow.
                        A. Criminal proceedings
                   Charges. First detention of Y.S.
       8.  On  5  February  1993 criminal proceedings  were  initiated
   against the applicants on suspicion of defrauding a Moscow bank  on
   a  credit  matter. The prosecution's case was that  the  applicants
   acted  together to obtain a loan in the bank on the security  of  a
   flat which did not in fact belong to them.
       9.  On  26  August, according to the applicants, on  27  August
   1995,  according to the Government, Y.S. was arrested and  remanded
   in  custody. Several days later, on 31 August 1995, she was charged
   with large-scale concerted fraud.
       10.  On  5  September 1995 the proceedings  against  I.S.  were
       11.  Following Y.S.'s arrest, her lawyer lodged an  application
   for  release  with  the Tverskoy District Court of  Moscow.  On  13
   September  1995 the court held that it was too late to examine  the
   application   for   release  as  by  that  time   the   preliminary
   investigation had finished.
       12.  On 26 March 1996 the investigating authorities sent Y.S.'s
   case to the Tverskoy District Court for trial.
       13. On 21 March 1997 the Tverskoy District Court found that the
   evidence  gathered against Y.S., although serious, did not  embrace
   all  offences possibly committed by her. The court also found  that
   the  proceedings against I.S. should not have been stopped  because
   there  had been evidence of her involvement in the offence too.  It
   was   decided   to  remit  the  case  against  Y.S.   for   further
   investigation.  The court of its own motion re-instituted  criminal
   proceedings  against I.S. and joined them to Y.S.'s  case.  It  was
   furthermore  ordered that Y.S. should stay in detention,  and  that
   I.S.,  at large at the moment, should be imprisoned as soon as  the
   police established her whereabouts.
       14.  Both applicants lodged appeals against the decision of  21
   March  1997,  but on 23 July 1997 the Moscow City Court  disallowed
       15.  Since  I.S.  continued  to  hide  from  the  investigating
   authorities,  it  was decided to sever her case from  that  of  her
   sister and to stay it. The term of Y.S.'s detention was extended.
                         First release of Y.S.
       16. On 9 December 1997 the Lyublinskiy District Court of Moscow
   ordered  that  Y.S.  should be released from  custody  because  the
   extension  of  her detention had been unlawful and because  of  her
   poor  health. She was released conditionally under the  undertaking
   not to leave her permanent residence.
       17.  On  15  December 1997 the case against Y.S.  was  for  the
   second time sent to the Tverskoy District Court for trial.
                        First detention of I.S.
       18.  On  30 March 1999, the police arrested I.S. and  took  her
   into custody. The proceedings against her were resumed.
                       Second detention of Y.S.
       19.  The  second examination of the case against  Y.S.  by  the
   Tverskoy  District  Court took place on 31 March  1999.  The  court
   noted  that  I.S. had by that time been arrested,  and  that  given
   close  factual links between the offences imputed to  the  sisters,
   the  proceedings  against them should be  joined.  The  court  also
   noted  that  Y.S. had not had sufficient opportunity to familiarise
   herself  with the prosecution file before the hearing. As a result,
   the  case against Y.S. was joined to that against I.S. and remitted
   for further investigation.
       20.  On  the same day Y.S. was imprisoned on the ground of  the
   gravity of the accusation.
       21.  The decision of 31 March 1999 became final on 13 May  1999
   after it had been upheld on appeal by the Moscow City Court.
                         First release of I.S.
       22.  On  29  April 1999 the Lyublinskiy District Court  granted
   I.S.'s   application   for  release  from   custody   because   the
   investigating authorities had not submitted convincing material  to
   justify  her  continued  detention. The  investigating  authorities
   appealed against this decision, and on 19 May 1999 the Moscow  City
   Court  allowed the appeal. However, by that time I.S.  had  already
   left the prison.
       23.  On 20 May 1999 the Tverskoy District Court considered that
   the  case  against  I.S. should be returned  to  the  investigating
   authorities to be joined with the case against Y.S.
                       Second detention of I.S.
       24. On 3 September 1999, I.S. was arrested and detained.
                   Second release of both applicants
       25. On 2 October 1999 Y.S. was released from prison because the
   investigation had finished and because the detention period set  by
   the General Prosecutor's Office had expired.
       26.  Shortly  afterwards,  on 7 October  1999,  I.S.  was  also
   released. Both applicants signed an undertaking not to leave  their
   permanent residence.
                Trial. Third detention of Y.S. and I.S.
       27.  On  29  October 1999 the investigating authorities  handed
   over  the  case  file  they had prepared to the  Tverskoy  District
   Court. On 10 November 1999 the judge who had accepted the case  for
   consideration  ruled  that the applicants  should  be  remanded  in
   custody  pending  trial in view of the gravity of  the  accusations
   and "the applicants' character".
             Proceedings before the Constitutional Court.
                         Third release of I.S.
       28.  On  14  January 2000 the Constitutional Court examined  an
   application  lodged  earlier by I.S. The court ruled  that  Article
   256  of the Code of Criminal Procedure was unconstitutional as  far
   as  it  empowered criminal courts to initiate of their  own  motion
   criminal  prosecution  of third persons  not  being  party  to  the
   original  proceedings, to apply measures of restraint and to  order
   further  investigations. The court held that by initiating criminal
   proceedings  the courts in essence assumed prosecutorial  functions
   in violation of the principle of the separation of powers.
       29.  Based on the judgment of the Constitutional Court,  on  an
   unspecified  date,  the acting president of the Moscow  City  Court
   lodged  an  application for supervisory review of  the  applicants'
       30.  On 24 February 2000 the Presidium of the Moscow City Court
   granted  the  application. The decisions of 21 March  and  23  July
   1997  were quashed in respect of I.S. The decision of 31 March 1999
   was  quashed in respect of both applicants. The decisions of 13 and
   20  May  and  10 November 1999 were also quashed. The case  against
   the  applicants  was  sent  for  further  investigation.  I.S.  was
   released, but her sister remained in prison.
                         Third release of Y.S.
       31. On 20 March 2000 the Prosecutor of the Tverskoy District re-
   instituted criminal proceedings against I.S. The case against  I.S.
   was joined to that of Y.S.
       32.  On 20 April 2000 the investigation of the applicants' case
   was  finished. On 25 April 2000 the prosecution file and indictment
   were  submitted to the Tverskoy District Court. The same day,  Y.S.
   was released because of the expiry of the custody period.
        Trial. Fourth detention of Y.S. and I.S. Their release
       33. The examination of the applicants' case was scheduled for 9
   June  2000.  However, the hearing did not take  place  because  the
   applicants  had failed to appear even though they had been  several
   times summoned for the service of the indictment.
       34. The hearing was adjourned until 22 August 2000 but it again
   failed  to  take place since the applicant had not appeared  before
   the court.
       35.   As   the  applicants  persistently  avoided   the   court
   proceedings  and  did not live at their permanent  address,  on  28
   August  2000 the Tverskoy District Court ordered their arrest.  The
   proceedings were stayed until the applicants were arrested.
       36. On 12 March 2001 the applicants were arrested and detained.
   The  court  proceedings resumed and on 24 September 2001 the  court
   extended the custody period for a further three months.
       37.  On  9  January 2002 the Tverskoy District Court found  the
   applicants  guilty and sentenced Y.S. to eight years'  imprisonment
   with  forfeiture of her estate, and I.S. to six years' imprisonment
   with forfeiture of her estate.
       38.  On  9  April  2002  the  Moscow City  Court  annulled  the
   judgment,  closed  the  proceedings and discharged  the  applicants
   from serving the sentence under the statute of limitations.
       39. The applicants were released in the courtroom.
               B. Proceedings concerning Y.S.'s passport
       40.  When the investigating authorities were arresting Y.S.  on
   26  August  1995, they withheld her national identity paper  -  the
   "internal passport". The passport was enclosed in the case file  at
   the   Tverskoy  District  Court.  Y.S.  made  several  unsuccessful
   attempts  to recover the document, filing complaints to courts  and
   prosecutors of various instances.
       41.  The  lack of passport made Y.S.'s everyday life difficult.
   In  December 1997 and April 1998 the Moscow Social Security Service
   and  a law firm both refused to employ her because she did not have
   a  passport.  In December 1997 a Moscow clinic informed  Y.S.  that
   free  medical  care could only be provided to her if she  presented
   an  insurance certificate and her passport. For the same reason, in
   April  1998  the  Moscow Telephone Company  refused  to  install  a
   telephone  line  in  Y.S.'s home. On 2 June 1998  the  Moscow  City
   Notary  Office  notified  Y.S.  that  she  needed  to  verify   her
   identity,  for  example, with a passport, if she wished  to  obtain
   notarial   acts.  On  10  December  1998  Y.S.  was   refused   the
   registration of her marriage. On 19 March 1999 she was  stopped  by
   a  police  patrol  for  an identity check. As  she  was  unable  to
   produce the passport, she was taken to a police station and had  to
   pay an administrative fine.
       42.  On  29  April  1998  the Office of the  Moscow  Prosecutor
   requested the Tverskoy District Court to return the passport.
       43.  On  an  unspecified  date the President  of  the  Tverskoy
   District  Court  informed  Y.S. that the  passport  could  be  made
   available  to  her for certain purposes. But it should  nonetheless
   remain  in  the  case file because otherwise the authorities  would
   not be able to tell Y.S. from her twin sister, who was in hiding.
       44.  On  29  June  1998 the President of the Tverskoy  District
   Court  confirmed that the passport should be retained in  the  case
       45.  On  31  March 1999 a police patrol came to the applicants'
   home  to  escort Y.S. to a court hearing. Both applicants  were  at
   home.  Perplexed by their almost identical appearance,  the  police
   demanded  that  the  applicants  identify  themselves  or   produce
   identity  papers. Having met a refusal, and knowing that  I.S.  was
   also  being looked for by the police, the patrol decided to  arrest
   both applicants and took them to a police station.
       46.  On 6 October 1999, the investigation officer in charge  of
   Y.S.'s case returned the passport to her.
                       II. Relevant domestic law
                 A. Code of Criminal Procedure of 1964
       Article 11(1) - Personal inviolability
       "No  one  may  be  arrested otherwise than on the  basis  of  a
   judicial decision or a prosecutor's order."
       Article 89(1) - Application of preventive measures
       "When  there  are  sufficient grounds  for  believing  that  an
   accused  person may evade an inquiry, preliminary investigation  or
   trial  or  will  obstruct  the establishment  of  the  truth  in  a
   criminal  case or will engage in criminal activity, as well  as  in
   order  to secure the execution of a sentence, the person conducting
   the  inquiry,  the investigator, the prosecutor or  the  court  may
   apply  one of the following preventive measures in respect  of  the
   accused:  a written undertaking not to leave a specified  place,  a
   personal  guarantee  or  a guarantee by a public  organisation,  or
   placement in custody."
       Article  92  -  Order  and decision on  the  application  of  a
   preventive measure
       "Upon  application of a preventive measure a person  conducting
   an  inquiry, an investigator or a prosecutor shall make a  reasoned
   order,  and  a court shall give a reasoned decision specifying  the
   criminal  offence which the individual concerned  is  suspected  of
   having  committed,  as  well  as  the  grounds  for  choosing   the
   preventive  measure  applied.  The  order  or  decision  shall   be
   notified  to  the person concerned, to whom at the  same  time  the
   procedure  for appealing against the application of the  preventive
   measure shall be explained.
       A  copy  of  the  order or decision on the application  of  the
   preventive  measure  shall  be immediately  handed  to  the  person
       Article 96 - Placement in custody
       "Placement in custody as a preventive measure shall be effected
   in  accordance  with the requirements of Article 11  of  this  Code
   concerning  criminal  offences  for  which  the  law  prescribes  a
   penalty in the form of deprivation of freedom for a period of  more
   than  one  year. In exceptional cases, this preventive measure  may
   be  applied in criminal matters for which a penalty in the form  of
   deprivation  of  freedom for a period of  less  than  one  year  is
   prescribed by law."
       Article 97 - Time-limits for pre-trial detention
       "A  period of detention during the investigation of offences in
   criminal  cases  may  not last longer than two months.  This  time-
   limit  may  be  extended by up to three months  by  a  district  or
   municipal  prosecutor  ...  if it is  impossible  to  complete  the
   investigation and there are no grounds for altering the  preventive
   measure.  A  further extension up to six months  from  the  day  of
   placement  in  custody may be effected only  in  cases  of  special
   complexity   by   a  prosecutor  of  a  subject  of   the   Russian
       An  extension of the time-limit for such detention  beyond  six
   months  shall  be permissible in exceptional cases  and  solely  in
   respect  of  persons accused of committing serious or very  serious
   criminal offences. Such an extension shall be effected by a  deputy
   of  the  Prosecutor General of the Russian Federation  (up  to  one
   year)  and by the Prosecutor General of the Russian Federation  (up
   to 18 months)."
       Article  101  -  Cancellation or modification of  a  preventive
       "A  preventive measure shall be cancelled when it ceases to  be
   necessary, or else changed into a stricter or a milder one  if  the
   circumstances   of  the  case  so  require.  The  cancellation   or
   modification  of  a  preventive measure  shall  be  effected  by  a
   reasoned  order  of  the  person  carrying  out  the  inquiry,  the
   investigator  or  the prosecutor, or by a reasoned  court  decision
   after the case has been transferred to a court.
       The  cancellation or modification, by the person conducting the
   inquiry  or by the investigator, of a preventive measure chosen  on
   the  prosecutor's instructions shall be permissible only  with  the
   prosecutor's approval."
       Article 223-1 - Setting a date for a court hearing
       "If  the accused is kept in custody, the question of setting  a
   date  for  a  court hearing must be decided no later than  14  days
   after the case reaches the court."
       Article 239 - Time-limits for examination of the case
       "The examination of a case before the court must start no later
   than 14 days as from the fixing of a hearing date."
              B. Laws concerning national identity papers
       Section  1 of the Rules regarding the passport of a citizen  of
   the  Russian  Federation  adopted by  the  Decree  of  the  Russian
   Government No. 828 of 8 July 1997 provides that the passport  of  a
   citizen   represents  the  basic  document  proving  the  citizen's
   identity on the territory of Russia.
       Pursuant  to  Section 5, the passport shall contain information
   about  the  citizen's  residence, liability  to  military  service,
   marital status, minor children, issue of other identity documents.
       Section 21 provides that the passport of convicted persons  and
   persons  remanded  in  custody shall  be  seized  by  investigating
   authorities  or  a  court and adduced to the case  file.  When  the
   citizen is released, the passport shall be returned.
       Article  178  of  the Code of Administrative Offences  of  1984
   establishes  that residing without a valid passport or  residential
   registration  shall  be punishable with an official  warning  or  a
       The   Moscow  Government  Decree  No.  713  of  17  July  1995,
   concerning  the  rules of residential registration,  establishes  a
   fine   of  up  to  five  times  the  minimum  wage  if  residential
   registration  cannot be shown, and up to fifty  times  the  minimum
   wage in case of repeated violations.
                                THE LAW
          I. Alleged violation of Article 5 of the Convention
       47. Article 5 of the Convention provides, as far as relevant:
       "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  ...
   entitled  to  trial within a reasonable time or to release  pending
   trial.  Release  may  be conditioned by guarantees  to  appear  for
                      A. Arguments of the parties
                           1. The applicants
       48.  The  applicants  submitted that there  had  been  no  good
   reasons to justify their repeated remand in custody.
       49. First, there had been no risk that they would abscond. They
   only  had  one  residence and their only income came from  jobs  in
   Moscow.  Since  the  applicants received much  correspondence  from
   Russian  authorities and international organisations,  they  needed
   to  stay  at home most of the time. The applicants were law-abiding
   citizens   because  they  worked  as  lawyers  and   valued   their
   reputation.  The  applicants'  moral condition  was  undermined  by
   years   of   criminal  prosecution,  arrests  and   interrogations.
   Besides,  Y.S.  suffered from a serious disease -  Schonlein-Henoch
   (weak  capillaries). The applicants wished the case to be tried  as
   soon  as  possible. They had never before absconded  from  justice,
   and  all  their  arrests  took  place  either  at  their  permanent
   residence or in court when they appeared for hearings.
       50.  Secondly, there had been no risk that the applicants would
   interfere  with  the  course  of  justice.  They  did  not  destroy
   documents or any other evidence, nor did they put pressure  on  the
   victims of the alleged offence.
       51. Thirdly, the detention was not necessary for prevention  of
   further  crimes.  The applicants' personalities and  lack  of  past
   criminal  record  in  no way suggested that they  might  engage  in
   criminal activities.
       52.  Lastly,  there  had been no grounds to  suspect  that  the
   applicants' release could lead to disturbance of public order.
       53. Furthermore, the detention was in fact the State's reprisal
   for   the   applicants'  appeals  to  international  organisations,
   including   the   Court,  because  it  coincided   with   important
   procedural events. By placing the applicants in custody  the  State
   intended  indirectly  to  punish  them  since  the  conditions   of
   detention   were  inadequate  and  since  Y.S.  spent   in   prison
   significantly more than 18 months permitted by law.
                           2. The Government
       54.  The  Government  stressed that  the  complaint  is  partly
   outside  the  Court's  competence ratione temporis  as  far  as  it
   concerns  the  detention before 5 May 1998  -  the  date  when  the
   Convention came into force in respect of Russia.
       55.  The Government further submitted that the authorities  had
   to  detain  the  applicants  because they  fled  from  justice  and
   violated  the  conditions of bail in that they did not  inform  the
   investigating authorities of their moves. They did not  appear  for
   trial  even though they knew that their case would soon  be  tried.
   The  taking  of the applicants into custody was in accordance  with
   the  domestic  law. It was mainly justified by the  risk  that  the
   applicants   may   flee,  for  example,  abroad.  The   applicants'
   systematic  hindering  of  the  investigation  accounted  for   the
   lengthy  detention. Besides, by its decision of 9  April  2002  the
   Moscow  City  Court  discharged the  applicants  from  serving  the
   sentence,  and this decision was by itself a just satisfaction  for
   the time spent in prison.
                       B. The Court's assessment
                         1. General principles
       56.  Article  5  з  1 (c) of the Convention  must  be  read  in
   conjunction  with Article 5 з 3 which forms a whole  with  it  (see
   Ciulla v. Italy, judgment of 22 February 1989, Series A no. 148,  з
       57.  In  examining the length of detention undergone subsequent
   to  the date of entry of the Convention into force, the Court takes
   account  of  the stage which the proceedings had reached.  To  that
   extent,  therefore,  it may have regard to the  previous  detention
   (see  Ventura v. Italy, no. 7438/76, Commission decision of 9 March
   1978, Decisions and Reports (DR) 12, p. 38).
       58.  A  person charged with an offence must always be  released
   pending  trial  unless the State can show that there are  "relevant
   and  sufficient"  reasons to justify the continued detention  (see,
   as  a  classic authority, Wemhoff v. Germany, judgment of  27  June
   1968,  Series  A  no.  7, pp. 24 - 25, з 12; Yagci  and  Sargin  v.
   Turkey, judgment of 8 June 1995, Series A no. 319-A, з 52).
       59. The Convention case-law has developed four basic acceptable
   reasons  for refusing bail: the risk that the accused will fail  to
   appear  for  trial  (see {Stogmuller} v. Austria,  judgment  of  10
   November  1969, Series A no. 9, з 15); the risk that  the  accused,
   if  released, would take action to prejudice the administration  of
   justice  (see  Wemhoff,  cited  above,  з  14)  or  commit  further
   offences (see Matznetter v. Austria, judgment of 10 November  1969,
   Series  A  no. 10, з 9) or cause public disorder (see Letellier  v.
   Francе, judgment of 26 June 1991, Series A no. 207, з 51).
       60.  The  danger of absconding cannot be gauged solely  on  the
   basis  of  the  severity  of  the possible  sentence;  it  must  be
   assessed  with  reference  to a number of  other  relevant  factors
   which  may  either confirm the existence of a danger of  absconding
   or  make  it  appear  so  slight that it cannot  justify  pre-trial
   detention. In this context regard must be had in particular to  the
   character  of  the  person involved, his morals,  his  assets,  his
   links  with  the  State  in which he is being  prosecuted  and  his
   international  contacts  (see  W. v. Switzerland,  judgment  of  26
   January 1993, Series A no. 254-A, з 33 with further references).
       61.  The  issue of whether a period of detention is  reasonable
   cannot  be  assessed in abstract. Whether it is reasonable  for  an
   accused  to  remain  in  detention must be assessed  in  each  case
   according  to  its  special features. Continued  detention  can  be
   justified  in  a given case only if there are specific  indications
   of  a genuine requirement of public interest which, notwithstanding
   the  presumption of innocence, outweighs the rule  of  respect  for
   individual liberty (see W. v. Switzerland, cited above, з 30).
       62.  It  falls  in  the  first place to the  national  judicial
   authorities  to  ensure  that,  in  a  given  case,  the  pre-trial
   detention  of an accused person does not exceed a reasonable  time.
   To  this end they must examine all the facts arguing for or against
   the   existence  of  a  genuine  requirement  of  public   interest
   justifying, with due regard to the principle of the presumption  of
   innocence,  a  departure  from the rule of respect  for  individual
   liberty  and  set  them out in their decisions on the  applications
   for  release.  It is essentially on the basis of the reasons  given
   in  these  decisions  and  of  the  true  facts  mentioned  by  the
   applicant  in his appeals, that the Court is called upon to  decide
   whether or not there has been a violation of Article 5 з 3  of  the
   Convention (see Letellier, cited above, з 35).
       63.  Arguments for and against release must not be "general and
   abstract"  (see  Clooth v. Belgium, judgment of 12  December  1991,
   Series A no. 225, з 44).
       64.  Where a suspect is on remand, he is entitled to  have  his
   case  given  priority  and conducted with  special  diligence  (see
   Matznetter, cited above, з 12).
                  2. Application to the present case
       65. The Court notes that the applicants' discharge from serving
   the  sentence does not deprive them of their status of  victims  of
   the  alleged Convention breaches, since no acknowledgement  of  the
   breaches  was  made  by  the Government  (see  Dalban  v.  Romania,
   judgment  of 28 September 1999, Reports of Judgments and  Decisions
   1999-VI, з 44).
       66.  The  Court  now  needs  to determine  the  period  of  the
   applicants' detention which it may take into consideration.
       Y.S. was detained four times: from 26 August 1995 to 9 December
   1997; from 31 March to 2 October 1999; from 10 November 1999 to  25
   April  2000; and from 12 March 2001 to 9 April 2002. In  sum,  this
   gives  4  years,  3 months and 29 days. Since the  Convention  came
   into  force in respect of Russia on 5 May 1998, of this period only
   2  years  and  15  days fall within the Court's competence  ratione
       I.S.  was  also detained four times: from 30 March to 29  April
   1999; from 3 September to 7 October 1999; from 10 November 1999  to
   24  February 2000; and from 12 March 2001 to 9 April 2002.  In  sum
   this gives 1 year, 6 months and 16 days.
       67.  In  the  majority of cases under Article 5 з 3  the  Court
   dealt  with the situation where the authorities refused for a  long
   uninterrupted  time to release a suspect from remand  custody.  The
   present  case  differs  in that the Court  must  examine  not  only
   whether  the  total  time  the  applicants  spent  in  custody  was
   reasonable,  but also whether the repetitiveness of  the  detention
   complied with Article 5 з 3.
       68.  The  time  of the applicants' detention is  not  short  in
   absolute  terms.  Nevertheless,  the  Court  cannot  rule  out  the
   possibility   that   it   might  have   been   justified   in   the
       69.  But to reach such a conclusion the Court would first  need
   to  evaluate  the  reasons  given by the  domestic  authorities  to
   justify  the  detention.  And  it  is  these  reasons  that  appear
       70.  Indeed, the decisions which the Court has at its  disposal
   are  remarkably terse and do not describe in detail characteristics
   of   the  applicants'  situation.  The  decision  of  the  Tverskoy
   District  Court  of 31 March 1999 only referred to the  seriousness
   of  the  charge against Y.S. to justify her detention. The decision
   of  10  November  1999  referred  to  the  applicants'  "character"
   without explaining what the character actually was and why it  made
   the  detention necessary. Likewise, on 28 August 2000 the  Tverskoy
   District  Court ordered the applicants' detention because they  had
   persistently  failed  to appear for trial without  giving  specific
   details or considering any alternative measures of restraint.
       71. In other words, the repeated re-detaining of the applicants
   in  the  course  of  one criminal investigation  on  the  basis  of
   insufficiently  reasoned  decisions  amounts  to  a  violation   of
   Article 5 зз 1 and 3.
       II. Alleged violation of Article 6 з 1 of the Convention
       72.  The  applicants  alleged  that  the  criminal  proceedings
   against them lasted unreasonably long in breach of Article  6  з  1
   of the Convention which provides, as far as relevant, as follows:
       "In  the determination of ... any criminal charge against  him,
   everyone is entitled to a ... hearing within a reasonable  time  by
   [a] ... tribunal..."
                      A. Arguments of the parties
                           1. The applicants
       73.  The applicants submitted, firstly, that neither the  facts
   nor  the  legal aspects of their case were complex. The  number  of
   defendants and witnesses was small, and their interrogation  should
   not have taken much time.
       74.  Secondly,  the applicants did their best  to  quicken  the
   proceedings.  They  filed  more than 100 complaints  demanding  the
   fastest  resolution of the case. The applicants had no interest  in
   dragging  out  the  proceedings because that  would  prolong  their
   remand  in  custody  and because they did not  consider  themselves
   guilty.  Their conduct corresponded to the requirements  set  forth
   in  the Convention case-law to "show diligence in carrying out  the
   procedural  steps  relating  to  [them],  to  refrain  from   using
   delaying  tactics and to avail [themselves] of the  scope  afforded
   by  domestic  law  for  shortening the  proceedings"  (see  {Union}
   Alimentaria Sanders SA v. Spain, judgment of 7 July 1989, Series  A
   no. 157, з 35).
       75. By contrast, the State authorities unreasonably delayed the
   investigation.  Their  case  remained  virtually  static  for  nine
       The  investigating authorities acted indolently. After the case
   had  been  remitted to them for further investigation,  they  idled
   for  several  years. The authorities delayed the proceedings  under
   various  formal  pretences such as consolidation and  severance  of
   cases, remittal for further investigation etc.
       The  investigators many times threatened the applicants with  a
   five-year pre-trial detention if they did not stop complaining.
       The  first  hearing of the case was fixed for six months  after
   the  case had been submitted to the court. At the first hearing the
   judge  did not start the examination of the merits of the case  but
   postponed  it  for another three and a half months. The  subsequent
   hearings were also delayed without good reason.
       The  length  of the proceedings was also in breach of  domestic
       76.   Much  was  at  stake  for  the  applicants.  During   the
   proceedings  they spent a considerable time in prison. They  risked
   losing  their  property  in case of an unfavourable  sentence.  The
   applicants  could  not  find a good job because  of  the  recurring
   arrests  and  because nobody wanted to employ persons known  to  be
   under  trial.  They had to stop their studies in  the  Calgary  and
   Moscow  universities,  their  professional  careers  suffered.  The
   prosecution  and  detention  affected  their  privacy,  health  and
                           2. The Government
       77.  The  Government submitted that the proceedings had  to  be
   adjourned  whilst the applicants were in hiding. The court  had  to
   spend its time on the decision to detain the applicants instead  of
   considering  the  merits of the charge. In sum,  Y.S.  was  on  the
   wanted  fugitive list for 2 years, 2 months and 6 days; her  sister
   - for 2 years, 9 months and 15 days.
       78. When in March 2001 the Tverskoy District Court received the
   case  for  trial,  it could not proceed because Y.S.  a  number  of
   times  asked  for extra time to study the case file. Y.S.'s  lawyer
   did  not  appear for hearings. Y.S. overwhelmed the court with  her
   numerous  complaints and motions, often unsubstantiated. The  court
   nonetheless had to spend its time on answering them.
       79. The Government concluded that the length of the proceedings
   was  mainly  caused  by  the applicants'  unwillingness  to  submit
   themselves to justice.
                       B. The Court's assessment
                         1. General principles
       80.  In  examining  the  length of  the  proceedings  undergone
   subsequent  to the date of entry of the Convention into force,  the
   Court  takes  account  of  the  stage  which  the  proceedings  had
   reached.  To  that  extent, therefore, it may have  regard  to  the
   previous proceedings (see Ventura, cited above).
       81.  Periods for which the applicant was on the run  should  be
   excluded  from the overall length of the proceedings (see  Girolami
   v. Italy, judgment of 19 February 1991, Series A no. 196-E, з 13).
       82.  The reasonableness of the length of proceedings is  to  be
   assessed in the light of the particular circumstances of the  case,
   regard  being  had to the criteria laid down in the  Court's  case-
   law,  in  particular  the complexity of the case,  the  applicant's
   conduct  and  the conduct of the competent authorities (see,  among
   many  other  authorities,  Kemmache  v.  France,  judgment  of   27
   November 1991, Series A no. 218, з 60).
       83.   Where   a  person  is  kept  in  detention  pending   the
   determination  of a criminal charge against him, the  fact  of  his
   detention  is  a factor to be considered in assessing  whether  the
   requirement  of  a decision on the merits within a reasonable  time
   has  been  met  (see Abdoella v. the Netherlands,  judgment  of  25
   November 1992, Series A no. 248-A, з 24).
                  2. Application to the present case
       84.  The  Court  first needs to determine  the  period  of  the
   proceedings which it may take into consideration.
       In  respect  of Y.S., the proceedings began on 5 February  1993
   when  the  authorities  started the criminal investigation  of  her
   activity.  They ended on 9 April 2002 with the appeal  judgment  of
   the  Moscow  City  Court. They have therefore  lasted  in  total  9
   years,  2 months and 4 days. Of this period only 3 years, 11 months
   and  4  days fall within the Court's jurisdiction ratione temporis.
   The  period from 28 August 2000 to 12 March 2001 (6 months  and  15
   days) should be excluded from the total period because during  this
   period  Y.S. was unlawfully at large. The period to be  taken  into
   consideration is therefore 3 years, 4 months and 19 days.
       In  respect  of I.S., the proceedings also began on 5  February
   1993. They were discontinued on 5 September 1995 and resumed on  21
   March  1997.  On 24 February 2000 the proceedings were discontinued
   for  a second time, and for a second time resumed on 20 March 2000.
   They  ended on 9 April 2002 with the appeal judgment of the  Moscow
   City  Court. The overall length of the proceedings was 7  years,  6
   months  and 23 days. Of this period only 3 years, 10 months  and  9
   days   fall  within  the  Court's  jurisdiction  ratione  temporis.
   Furthermore, since from 21 March 1997 to 30 March 1999 and from  28
   August  to  12  March  2001  I.S. was unlawfully  at  large,  these
   periods  should be excluded. So then, the period to be  taken  into
   consideration is 2 years, 5 months and 27 days.
       85. As to the complexity of the case, the Court agrees with the
   applicants  that  the  charges  they faced  were  not  particularly
   complex.   The  investigation  of  the  offence  imputed   to   the
   applicants - credit fraud and misappropriation of others'  property
   - if carried out diligently, should not have taken years.
       86.  As  to the applicants' conduct, the Court is not convinced
   that  the  applicants were always willing to submit to the  courts'
   jurisdiction  since  both of them absconded  for  months  from  the
   investigating   authorities.   Furthermore,   filing   dozens    of
   complaints  -  even well-grounded - may unnecessarily distract  the
   authorities from concentrating on the main issues.
       87.  As to the conduct of the authorities, the Court finds that
   there  have  been significant periods of inactivity on  their  part
   which  find  no convincing justification. The initial investigation
   lasted  from February 1993 to March 1996. The first examination  of
   the  case  took place on 21 March 1997, almost one year  after  the
   investigation  had  been finished. The second  examination  of  the
   case  took  place on 31 March 1999, two years after the first  one.
   The  final  trial took place on 9 January 2002, almost three  years
   after the second one. The decision of the Constitutional Court,  on
   the  one hand, remedied the situation in connection with the charge
   brought  unlawfully  against I.S., yet on the  other  hand,  caused
   another  delay in the proceedings. Furthermore, by giving  sparsely
   reasoned recurring decisions to detain and release the  applicants
   the  authorities aroused in them a sense of insecurity and mistrust
   towards justice thereby indirectly urging them to abscond.
       88.  Accordingly, in all the circumstances of the present case,
   the  Court  considers that the length of the proceedings  fails  to
   satisfy  the  "reasonable time" requirement. There has  accordingly
   been a breach of Article 6 з 1.
         III. Alleged violation of Article 8 of the Convention
       89. Y.S. alleged that the withholding of her identity paper,  a
   document essential for everyday living in the country, amounted  to
   a violation of Article 8 of the Convention which reads as follows:
       "1.  Everyone  has  the right to respect for  his  private  and
   family life, his home and his correspondence.
       2.  There  shall be no interference by a public authority  with
   the  exercise  of  this right except such as is in accordance  with
   the  law  and is necessary in a democratic society in the interests
   of  national security, public safety or the economic well-being  of
   the  country,  for  the prevention of disorder or  crime,  for  the
   protection  of  health  or morals, or for  the  protection  of  the
   rights and freedoms of others."
                      A. Arguments of the parties
                           1. The applicant
       90.  Y.S.  submitted that a Russian citizen holding no passport
   is  impaired in his rights to a degree amounting to an interference
   with  his  private life. The law requires that a person who  wishes
   to  find  employment,  receive  free medical  care,  receive  mail,
   marry, vote, use notarial services, install a telephone line,  save
   money  by  buying foreign currency or travel by train or  aeroplane
   must  be  able  to produce a passport. Furthermore,  not  having  a
   passport  is  in  itself an administrative offence.  The  applicant
   could  do  none of the above, and in March 1999 she was  fined  for
   not holding a passport.
       91.  Y.S.  further submitted that the interference was  not  in
   accordance  with  the law. According to the law, State  authorities
   may  withdraw a passport only after final conviction. The  passport
   must   be   returned  once  the  citizen  is  released.   Secondary
   legislation  gives  the  prosecuting  authorities  and  courts  the
   additional right to withdraw the passport of unconvicted  prisoners
   for  the period of their pre-trial detention. However, in this case
   too, the passport must be returned to the citizen as soon as he  or
   she is released.
       92. The withholding of the passport did not serve the interests
   of  national security because the charges of fraud were not amongst
   crimes  undermining fundamental principles of Constitutional system
   or  State security. National security would not have suffered,  had
   the  applicant been able to find a job, go to a clinic, marry  etc.
   Nor was the applicant's offence a threat to public safety. And,  in
   any  event,  without  a  passport Y.S.  would  have  been  able  to
   threaten  public safety had she so wished, as well as  if  she  had
   the  document.  The withholding of the passport could  not  improve
   the economic well-being of the country, lead to public disorder  or
   crime.  It  did  not  serve the interests of protecting  health  or
   morals  or  the rights and freedoms of others. It was not necessary
   in a democratic society either.
       93.  The  only  reason  the authorities gave  for  keeping  the
   passport in  the  case file was their own convenience  of  telling
   Y.S. from her twin sister. This reason was not only beyond the  law
   but  also beyond common sense as it is not clear how attaching  the
   passport to the case file could make her identification easier.
                           2. The Government
       94.  The Government submitted that the Tverskoy District  Court
   needed  to  keep the passport in the case file because the  sisters
   had  several  times used their similar appearance  to  confuse  the
   investigating  authorities. The police  report  of  31  March  1999
   serves  as  an  example.  The authorities even  had  to  check  the
   applicants'  fingerprints in order to tell them from  one  another.
   The  court  was ready to make the passport available  to  Y.S.  for
   certain  crucial purposes and informed her about it, but she  never
   came  to  collect the passport. The court issued a  certificate  of
   withdrawal which could have temporarily replaced the passport,  but
   Y.S. refused to collect it too.
                       B. The Court's assessment
                  1. Whether Article 8 is applicable
       95. The Court has a number of times ruled that private life  is
   a  broad term not susceptible to exhaustive definition (see,  as  a
   recent authority, Peck v. the United Kingdom, no. 44647/98,  з  57,
   ECHR  2003  -  ...).  It  has nevertheless been  outlined  that  it
   protects the moral and physical integrity of the individual (see  X
   and  Y v. the Netherlands, judgment of 26 March 1985, Series A  no.
   91,  зз 22 - 27), including the right to live privately, away  from
   unwanted  attention.  It also secures to the  individual  a  sphere
   within  which  he  or  she can freely pursue  the  development  and
   fulfilment  of  his personality (see {Bruggeman}  and  Scheuten  v.
   Germany,  no.  6959/75,  Commission's  report  of  12  July   1977,
   Decisions and Reports (DR) 10, p. 115, з 55).
       96.  The  Court  notes that Y.S.'s passport was  seized  on  26
   August  1995  and  returned  on  6  October  1999.  Y.S.  has   not
   substantiated any concrete event which happened after 5 May 1998  -
   the  day when the Convention became effective in respect of  Russia
   -  and  which  would  as  such constitute,  at  least  arguably,  a
   disrespect  of  her  private life. However, the  interference  with
   Y.S's private life is peculiar in that it allegedly flows not  from
   an  instantaneous act, but from a number of everyday inconveniences
   taken   in  their  entirety  which  lasted  till  6  October  1999.
   Therefore,  the  Court  has the temporal jurisdiction  over  Y.S.'s
   situation,  at  least  as regards the period subsequent  to  5  May
       97.  The Court finds it established that in their everyday life
   Russian  citizens  have  to prove their identity  unusually  often,
   even  when performing such mundane tasks as exchanging currency  or
   buying  train  tickets. The internal passport is also required  for
   more  crucial  needs, for example, finding employment or  receiving
   medical   care.   The   deprivation  of  the   passport   therefore
   represented a continuing interference with the applicant's  private
   life  (see,  mutatis  mutandis, Christine  Goodwin  v.  the  United
   Kingdom [GC], no. 28957/95, з 77, ECHR 2002-VI).
                    2. Whether the interference was
                     "in accordance with the law"
       98.  The  principal  issue  is whether  this  interference  was
   justified  under  Article  8  з  2,  notably  whether  it  was  "in
   accordance  with the law" and "necessary in a democratic  society",
   for one of the purposes enumerated in that paragraph.
       99.  The Court recalls that the phrase "in accordance with  the
   law"  requires, in the first place, that the measure complained  of
   must  have  some basis in domestic law (see Malone  v.  the  United
   Kingdom, judgment of 2 August 1984, Series A no. 82, з 66).
       100.  The  Government  have not shown that  the  non-return  of
   Y.S.'s passport upon her release from remand custody had any  basis
   in  domestic  law.  There has, accordingly,  been  a  violation  of
   Article 8.
            IV. Application of Article 41 of the Convention
       101. Article 41 of the Convention provides:
       "If  the  Court  finds that there has been a violation  of  the
   Convention  or  the Protocols thereto, and if the internal  law  of
   the   High   Contracting  Party  concerned  allows   only   partial
   reparation  to be made, the Court shall, if necessary, afford  just
   satisfaction to the injured party."
       102.  The applicants claimed compensation for the non-pecuniary
   damage  suffered  by  them  and reimbursement  of  their  pecuniary
   losses   and   their  legal  costs  and  expenses.  The  Government
   contested these claims.
                        A. Non-pecuniary damage
       103. The applicants claimed 350,000 US dollars (USD) in respect
   of  non-pecuniary loss. They underlined the emotional distress they
   suffered as a consequence of repeated and unjustified detention  on
   remand,  often  in overcrowded and unsanitary prison  cells.  Their
   health  declined  so badly that they cannot enjoy an  active  life,
   they  feel  unhappy  and miserable. According to  medical  reports,
   they  would  not  be  able to give birth to healthy  children.  The
   applicants  were  not  able to find steady well-paid  jobs  because
   employers knew that the applicants could have been arrested at  any
   time   and   because  persons  under  investigation  are  generally
   disliked. The applicants' professional careers crashed, they  could
   not  pursue  their studies, and seeing others' success  makes  them
   suffer.  Remand  in custody deprived them of their  privacy,  their
   good name and reputation were damaged.
       104.  The  Government argued that the taking of the  applicants
   into  custody was legitimate, therefore any claims arising from  it
   should be dismissed. But even if the Court found a violation,  such
   a  finding would constitute sufficient just satisfaction in  itself
   because the applicants never served their sentence.
       105.  The  Court  observes  that some  forms  of  non-pecuniary
   damage,  including emotional distress, by their very nature  cannot
   always be the object of concrete proof (see Abdulaziz, Cabales  and
   Balkandali  v. the United Kingdom, judgment of 28 May 1985,  Series
   A  no.  94,  з 96). This does not prevent the Court from making  an
   award  if  it  considers that it is reasonable to  assume  that  an
   applicant has suffered injury requiring financial compensation.  In
   the  present  case, it is reasonable to assume that the  applicants
   suffered  distress,  anxiety  and frustration  exacerbated  by  the
   repeated  detention  on  remand  and  unreasonable  length  of  the
   proceedings. Furthermore, Y.S. suffered frustration over not  being
   able  to  engage fully in her everyday life due to the confiscation
   of her passport.
       106.  Deciding  on an equitable basis, the Court  awards  3,500
   euros to Y.S. and 2,000 euros to I.S.
                          B. Pecuniary damage
       107.   The   applicants  claimed  that  they   have   sustained
   significant materials losses as a direct result of their  pre-trial
   detention and criminal prosecution, including a salary loss of  USD
   253,530.  They  also  claimed USD 9,050  as  compensation  for  the
   damage  for  their  property inflicted by  police  officers  during
   their  arrests and USD 5,000 as compensation for necessities passed
   by I.S to Y.S. whilst the latter was in prison.
       108.  The  Government argued that there is no causal connection
   between  the violations established and any damage. They underlined
   that  the  periods  of  the  applicants' pre-trial  detention  were
   deducted  from  the  final  sentence,  and  that  even  though  the
   sentence  was later set aside it was so only on technical  grounds.
   The  Government also argued that the applicants had not proved that
   they  lost  their employment or that it was because of the  actions
   of  the  authorities. The applicants had not proved that the damage
   to  their  property was caused by the police or that they had  paid
   the   repair  bill.  Neither  had  they  proved  that  I.S.  bought
   necessities for Y.S.
       109.  The Court concludes, on the evidence before it, that  the
   applicants  have failed to show that the pecuniary  damage  pleaded
   was  actually  caused by the protracted length of  their  detention
   and  trial.  Furthermore, the entire period of pre-trial  detention
   was  deducted from the sentence (see Toth v. Austria,  judgment  of
   12 December 1991, Series A no. 224, з 91).
       110.  Consequently, the Court finds no justification for making
   an award to the applicants under that head.
                         C. Costs and expenses
       111.  The  applicants  claimed USD 19,300  for  legal  expenses
   arising  out  of the domestic proceedings and USD 18,737  plus  EUR
   9,807.20  for  legal expenses arising out of their  application  to
   this  Court.  They also claimed USD 1,004 for medical and  security
       112.  The  Government argued that the applicants had not  shown
   that  the  expenses  had  been  incurred  in  connection  with  the
   violations alleged; that there were not enough documents  to  prove
   that  the applicants had actually paid the lawyers' bills; and that
   the  bills themselves were inflated. The Government also emphasised
   that  even  though  the  Council  of  Europe  had  granted  to  the
   applicants  legal  aid due to their poverty, they  were  able,  for
   some  reason, to afford the legal services of an expensive American
   law firm.
       113. The Court recalls that in order for costs and expenses  to
   be  included  in an award under Article 41, it must be  established
   that  that they were actually and necessarily incurred in order  to
   prevent  or  obtain redress for the matter found  to  constitute  a
   violation  of  the  Convention and were reasonable  as  to  quantum
   (see,  for  example,  Nielsen  and  Johnson  v.  Norway  [GC],  no.
   23118/93,  з  43,  ECHR 1999-VIII). It may be  concluded  from  the
   material  submitted that the applicants incurred  legal  costs  and
   expenses in connection with their attempts to secure their  release
   on   bail.   However,   they  only  provided  partial   documentary
   substantiation of the sum claimed.
       114.  Taking into account the legal aid paid by the Council  of
   Europe, the Court awards EUR 1,000 for legal costs and expenses.
                          D. Default interest
       115.  The  Court  considers  it appropriate  that  the  default
   interest  should  be  based on the marginal  lending  rate  of  the
   European  Central  Bank, to which should be added three  percentage
       1.  Holds that there has been a violation of Article 5 зз 1 and
   3 of the Convention in respect of both applicants;
       2.  Holds that there has been a violation of Article 6 з  1  of
   the Convention in respect of both applicants;
       3.  Holds that there has been a violation of Article 8  of  the
   Convention in respect of the first applicant;
       4. Holds
       (a)  that  the respondent State is to pay, within three  months
   from  the  date  on which the judgment becomes final  according  to
   Article 44 з 2 of the Convention, the following amounts:
           (i) to the first applicant EUR 3,500 (three thousand  five
       hundred euros) in respect of non-pecuniary damage;
           (ii) to the  second  applicant  EUR  2,000  (two  thousand
       euros) in respect of non-pecuniary damage;
           (ii) to the applicants jointly  EUR  1,000  (one  thousand
       euros) in respect of costs and expenses;
       (b)  that  from the expiry of the above-mentioned three  months
   until  settlement  simple interest shall be payable  on  the  above
   amounts  at  a  rate  equal to the marginal  lending  rate  of  the
   European  Central  Bank  during  the  default  period  plus   three
   percentage points;
       5.  Dismisses the remainder of the applicants' claim  for  just
       Done  in  English,  and notified in writing on  24  July  2003,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
                                                            Georg RESS
                                                        Vincent BERGER

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