EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF NAKHMANOVICH v. RUSSIA
(Application No. 55669/00)
JUDGMENT <*>
(Strasbourg, 2.III.2006)
--------------------------------
<*> 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.
In the case of Nakhmanovich v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 9 February 2006,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 55669/00) 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 a national of Kazakhstan, Mr Lev
Aleksandrovich Nakhmanovich, on 29 December 1999.
2. The applicant was represented before the Court by Ms K.
Moskalenko, a lawyer with the International Protection Centre in
Moscow. The Russian Government ("the Government") were represented
by Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
3. The applicant alleged, in particular, that his detention
pending trial had been unlawful and also excessively long, that
his complaint concerning the lawfulness of his detention had not
been considered and that the length of the criminal proceedings
against him had breached the "reasonable-time" requirement of
Article 6 з 1 of the Convention.
4. The application was allocated to the First 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.
5. By a decision of 28 October 2004 the Court declared the
application partly admissible.
6. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
7. The Government filed observations on the merits of the
complaint under Article 6 з 1 of the Convention (Rule 59 з 1). The
applicant did not file observations on the merits.
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1957 and lives in Jambul,
Kazakhstan.
A. Criminal proceedings against the applicant in 1992 - 1994
9. On 28 October 1992 the Moscow police opened a criminal
investigation into the theft of about four thousand million
Russian roubles (approximately thirty-five million US dollars)
from the Bank of Russia through the use of forged credit notes of
the National Bank of Kazakhstan.
10. On 24 December 1992 the applicant was arrested at Moscow
Airport on his arrival from Italy and taken into custody. On 26
and 27 December 1992 the applicant confessed to having conspired
with Mr Smolenskiy, director of a Russian commercial bank, to
steal the money.
11. On 28 December 1992 the applicant was released from
custody.
12. On 23 November 1994 the applicant was charged with large-
scale fraud, an offence under Article 147 з 3 of the Russian
Soviet Federative Socialist Republic (RSFSR) Criminal Code, and
ordered to be detained pending trial. As by that time the
applicant had fled from Russia, his name was placed on the list of
fugitives from justice.
B. The applicant's arrest in Switzerland and extradition
13. On 20 March 1997 the applicant's name was placed on the
Interpol wanted list. On 11 September 1997 the Swiss police
arrested the applicant in Lugano, Switzerland, with a view to
extraditing him.
14. Upon receipt of the documents supporting the extradition
request, the Swiss authorities decided on 29 January 1998 to
extradite the applicant.
15. On 24 April 1998 the applicant was extradited to Russia,
where he was placed in detention facility IZ-48/4 ("Matrosskaya
Tishina").
C. Criminal proceedings against the applicant in Russia
1. First review of the lawfulness
of the applicant's detention
16. On 15 June 1998 the applicant's counsel asked the
Preobrazhenskiy District Court of Moscow to release the applicant.
She submitted, in particular, that he had been detained in
Switzerland on the basis of the arrest warrant of 23 November 1994
and had remained in custody for more than nine months. In
Kazakhstan, his country of nationality, the criminal proceedings
against him had been discontinued on the ground that no criminal
offence had been committed. In any event, after six years'
investigation the investigators had gathered all the available
evidence including statements by witnesses, and the applicant
could not therefore interfere with the establishment of the truth.
Finally, his release was necessary on medical grounds because his
health had seriously deteriorated in detention.
17. On 25 June and 8 July 1998 the hearings listed before the
Preobrazhenskiy District Court were adjourned because the
applicant had not been brought to the court.
18. On 13 July 1998 a deputy Prosecutor General of the Russian
Federation authorised an extension of the applicant's detention
pending trial until 8 September 1998, that is, for a total of
twelve months from the date of his initial detention in
Switzerland. The continued detention was justified by reference to
the gravity of the offence, the risk that the applicant might
abscond and the international obligations undertaken by the
Russian authorities in the extradition proceedings.
19. On 14 July 1998 the Preobrazhenskiy District Court took
statements from the applicant and his lawyer and from the
prosecutor and held that the detention had been imposed and
subsequently extended on valid grounds and in compliance with the
Code of Criminal Procedure. Accordingly, no grounds for applying a
different measure of restraint had been made out.
20. On 3 August 1998 the Moscow City Court upheld the decision
of 14 July 1998. The court reiterated in general terms the finding
that the applicant's detention was lawful.
2. Extension of the detention period and second review
21. On 29 July 1998 the Prosecutor General authorised an
extension of the applicant's detention pending trial until 8 March
1999, that is, for a total of eighteen months. The applicant
submitted that no separate extension order had been issued and
that the new authorisation had been printed on top of the
authorisation of 13 July 1998. He further submitted that he had
not been notified of the extension until 10 September 1998.
22. On 22 October 1998 the applicant's counsel challenged the
extension before the Preobrazhenskiy District Court. She
submitted, in particular, that there was no indication that the
applicant had committed an offence on Russian territory; that the
authorised period of his detention had expired on 8 September
1998, whereas the applicant had not been notified of the
subsequent extension until two days later; and that there was no
actual risk that the applicant would abscond or interfere with the
investigation.
23. On 13 November 1998 the Preobrazhenskiy District Court
dismissed the challenge. It held that there were no grounds for
lifting or varying the preventive measure imposed on the
applicant, as the detention period had been extended in accordance
with the law. The court found that it was not competent to review
the lawfulness of, and grounds for, the applicant's placement into
custody because that issue had already been determined in the
decision of 14 July 1998 (see paragraph 19 above).
24. On 23 November 1998 the applicant's lawyers lodged an
appeal. They submitted, in particular, that domestic law permitted
the extension of detention beyond the nine-month period only in
"exceptional circumstances", whereas in the present case neither
the Prosecutor General, who had authorised the extension to
eighteen months, nor the District Court that had reviewed his
decision, had pointed to any such circumstance.
25. On 9 December 1998 the Moscow City Court upheld the
decision of 13 November 1998. The court reiterated that the
detention period had been extended lawfully because the applicant
had been charged with a serious offence. No other reasons for the
continued detention were given.
3. New charges and severing of the applicant's case
26. On 29 December 1998 a new charge was added: the applicant
was accused of forging and making use of a State document, an
offence under Article 196 з 1 of the RSFSR Criminal Code.
27. On 14 January 1999 the Prosecutor General's Office decided
to sever the case against the applicant from that against Mr
Smolenskiy, the applicant's co-accused.
28. On 4 March 1999 the case file and the bill of indictment
were deposited with the Zamoskvoretskiy District Court of Moscow
in preparation for trial.
29. On 22 March 1999 the District Court set the case down for
hearing on 6 April 1999. The hearing was subsequently adjourned
three times.
30. On 7 May 1999 the District Court found that the applicant's
right to consult his lawyers had been unlawfully restricted, with
the result that the defence's requests for discontinuation of the
proceedings, the applicant's release, the summoning of additional
witnesses and the exclusion of certain evidence had not been
examined. The court referred the case back to the pre-trial stage
(стадия назначения к слушанию).
4. Referral of the case back for additional investigation
31. On 20 May 1999 the Zamoskvoretskiy District Court found
that the case against the applicant had been unlawfully severed
from the case against Mr Smolenskiy. The court considered that the
prosecution should complete the investigation into Mr Smolenskiy's
offences and that the charges against both co-defendants should be
examined together. The court ordered the case to be referred back
for additional investigation. The prosecution appealed against the
decision.
32. On 18 June 1999 the criminal proceedings against Mr
Smolenskiy were discontinued for lack of evidence.
33. On 7 July 1999 the Moscow City Court upheld the decision of
20 May 1999. The court also established other procedural defects:
in particular, it ordered that the lawfulness of the
discontinuation of criminal proceedings against Mr Smolenskiy be
reviewed and that the applicant's bill of indictment be updated
accordingly.
34. On 19 July 1999 the applicant's case file was returned to
the Prosecutor General's Office.
35. On 23 July 1999 the Prosecutor General's Office lodged an
application for supervisory review (протест в порядке надзора)
against the decisions of 20 May and 7 July 1999 with the Presidium
of the Moscow City Court. The prosecution claimed that, in
referring the case back for additional investigation, the courts
had failed to take into account the imminent expiry of the
authorised detention period and had also violated the applicant's
right to have the charge against him determined within a
reasonable time.
5. Further attempts to obtain a review
of the lawfulness of the applicant's detention
36. In July 1999 the applicant's lawyer complained about the
unlawfulness of her client's continued detention to the director
of the remand centre where the applicant was being held, the
deputy Minister of Justice in charge of the Prisons Administration
Department (ГУИН Министерства юстиции РФ), the Minister of
Justice, the acting Prosecutor General and the Preobrazhenskiy
District Court (on 26 July 1999). She requested the applicant's
release, claiming that his detention after 24 July 1999 had been
unlawful as no further extension had been authorised.
37. On 28 July 1999 a senior legal adviser from the Prosecutor
General's Office informed the Prisons Administration Department
that from the date on which the deputy Prosecutor General had
lodged an application for supervisory review the applicant's
detention had been "accounted for by the Moscow City Court". The
authorities of the remand centre relayed this information to the
applicant's lawyer.
38. On 4 August 1999 the Minister of Justice sent a letter to
the acting Prosecutor General, the relevant part of which read as
follows:
"...on 19 July 1999 the case file was received by the
Prosecutor General's Office from the Zamoskvoretskiy District
Court of Moscow... [The applicant's] detention period expired on
23 July 1999.
According to the information from the Prosecutor General's
Office, the [the applicant's] detention period was suspended in
connection with the lodging of the application for supervisory
review... and the transfer of the applicant to the Moscow City
Court.
I consider that this approach by the officials of the
Prosecutor General's Office is incompatible with the Constitution
of the Russian Federation and its criminal-procedure laws.
...For instance, the criminal-procedure laws do not provide for
suspension of the renewed detention period pending examination of
an application for supervisory review of the decision to refer the
case back for additional investigation... This means that the
examination of final judgments, decisions or rulings by means of
[supervisory] review does not suspend either the enforcement of
the judgment or the [additional] pre-trial investigation if the
case has been referred back for additional investigation [by a
court decision].
...Accordingly, in the present case, [the lodging of an
application for supervisory review] suspended not the detention
period, but the additional investigation, as it is inconceivable
that suspension of the detention period in such a case would be
conducive to the implementation of a citizen's right to liberty
and personal integrity enshrined in Article 22 of the
Constitution.
...In this connection the legislature made provision, in
Article 97 of the RSFSR Code of Criminal Procedure, for one and
only one option for extending the detention period if a case is
referred back for additional investigation, namely that such
extension must be authorised by the prosecutor supervising the
investigation."
The Minister of Justice invited the Prosecutor General to
report within one day on whether the applicant's detention pending
trial had been extended as provided for in Article 97 of the Code
of Criminal Procedure.
39. On 5 August 1999 a deputy Prosecutor General wrote to the
Minister of Justice stating that his office had received the case
file on 20 July 1999 and that he had lodged an application for
supervisory review without "having taken on the case" ("не
принимая дело к своему производству"). The letter did not refer to
any extension of the applicant's detention.
40. On the same day Mr L., the prosecutor supervising the
lawfulness of the enforcement of criminal penalties, sent a faxed
request to the remand centre where the applicant was being held,
requesting that the applicant should not be released until the
Moscow City Court had examined the application for supervisory
review.
41. On 12 August 1999 the Presidium of the Moscow City Court
quashed the decisions of 7 and 20 May and 7 July 1999 on
procedural grounds and remitted the case to the Zamoskvoretskiy
District Court for examination on the merits by a differently
composed bench.
42. On 16 August 1999 a judge of the Preobrazhenskiy District
Court discontinued the proceedings in connection with the
complaint concerning the unlawfulness of the applicant's detention
because "on 13 August 1999 the [applicant's] case had been
referred to the Zamoskvoretskiy District Court for trial".
43. On 6 October 1999 the case file was returned to the
Zamoskvoretskiy District Court. The commencement of the trial was
scheduled for 25 November 1999 but was adjourned on three
occasions because certain documents from the Prosecutor General's
Office were missing or because the presiding judge was involved in
other proceedings.
D. The applicant's release
from custody and further developments
44. On 20 January 2000 the Zamoskvoretskiy District Court
ordered the case to be referred back to the Prosecutor General's
Office for additional investigation. It held that the preventive
measure imposed on the applicant (detention pending trial) "should
remain unchanged".
45. On 4 February 2000 the Investigations Department of the
Ministry of the Interior resumed the investigation. On the same
day the applicant was released subject to an undertaking that he
would not leave the city.
46. In March 2000 the applicant applied for permission to
return home. After permission had been granted, he left for
Kazakhstan on 12 March 2000.
47. On 3 March and 12 April 2000 the Investigations Department
of the Ministry of the Interior asked the Prosecutor General to
extend the authorised term of the investigation. On 20 March and
27 April 2000 a deputy Prosecutor General refused a further
extension because "the applicant's whereabouts could not be
established".
48. On 20 April and 7 June 2000 the applicant's lawyers asked
the investigators to inform them of the situation with regard to
the criminal proceedings against the applicant; their requests
received no response.
49. On 7 June 2000 the applicant's lawyers also requested the
prosecution to discontinue the criminal case against the
applicant, referring to a decision of 28 April 2000 by the
Kazakhstan prosecutors to discontinue the criminal proceedings. On
27 June 2000 the acting head of the department for supervision of
investigations of particularly serious cases in the Prosecutor
General's Office refused their request on the ground that the
offence had been committed on Russian territory and that there
were no legal grounds for discontinuing the proceedings against
the applicant.
50. According to the Government, the criminal proceedings
against the applicant in Russia had been discontinued on 28 April
2000 by a decision of the Investigations Department of the
Ministry of the Interior, on the ground that the applicant's
involvement in the offence could not be proved. The decision
indicated, in particular, that "further proceedings in the case
[had been] impossible because the Prosecutor General's Office
[had] refused a further extension of the authorised investigation
period". On an unspecified date the investigator had allegedly
informed the applicant of that decision by telephone, but had been
unable to send a copy of the decision to the applicant because he
had not known his address. In June 2000 the same information had
allegedly been communicated to Ms Orozalieva, the applicant's
lawyer.
51. On 16 January 2004 Ms Orozalieva asked the Investigations
Department of the Ministry of the Interior for a copy of the
decision to discontinue the criminal proceedings against the
applicant. She indicated that she had learnt of its existence in
October 2003, during a conversation with a senior investigator
dealing with particularly serious cases in the Prosecutor
General's Office.
52. On 17 February 2004 the deputy head of the Investigations
Department of the Ministry of the Interior replied to her that "on
27 December 2000 case file No. 81684 [had been] sent to the
Prosecutor General's Office and [had] not yet been returned to the
Investigations Department of the Ministry of the Interior; the
documents [could not] therefore be provided".
II. Relevant domestic law
53. Until 1 July 2002 criminal-law matters were governed by the
Code of Criminal Procedure of the Russian Soviet Federative
Socialist Republic (Law of 27 October 1960, "the old CCrP").
54. "Preventive measures" or "measures of restraint" (меры
пресечения) included an undertaking not to leave a town or region,
personal surety, bail and detention pending trial (Article 89). A
decision ordering detention pending trial could be taken by a
prosecutor or a court (Articles 11, 89 and 96).
55. At the material time - before the amendments of 14 March
2001 - detention pending trial was authorised if the accused had
been charged with a criminal offence carrying a sentence of at
least one year's imprisonment or if there were "exceptional
circumstances" in the case. If the accused had been charged with a
serious or particularly serious criminal offence - a category
which included large-scale fraud - he could be remanded in custody
on the sole ground of "the dangerous nature of the crime" (Article
96).
56. The detainee or his representative could challenge the
detention order before a court. The judge was required to review
the lawfulness of, and grounds for, the order no later than three
days after receipt of the relevant papers. The review was to be
conducted in camera in the presence of a prosecutor and the
detainee's counsel or representative. The judge could either
dismiss the challenge or set aside the pre-trial detention and
order the detainee's release (Article 220-1).
57. After arrest the suspect was placed in custody "pending
investigation". The maximum permitted period of detention "pending
investigation" was two months, but it could be extended up to
eighteen months in "exceptional circumstances". Extensions were
authorised by prosecutors of ascending hierarchical levels. No
extension of detention "pending investigation" was possible beyond
eighteen months. The period of detention "pending investigation"
was calculated up to the day when the prosecutor sent the case to
the trial court (Article 97).
58. From the date on which the prosecutor forwarded the case to
the trial court, the defendant's detention was "before the court"
(or "during trial"). Within fourteen days of receipt of the case
file (if the defendant was in custody), the judge was required
either (1) to set the trial date; (2) to refer the case back for
additional investigation; (3) to stay or discontinue the
proceedings; or (4) to refer the case to a court with jurisdiction
to hear it (Article 221). Upon receipt of the case file, the judge
had to determine, in particular, whether the defendant should
remain in custody or be released pending trial (Articles 222 з 5
and 230) and to rule on any application by the defendant for
release (Article 223).
59. The trial court could refer the case back for additional
investigation if it established that procedural defects existed
that could not be remedied at the trial. In such cases the
defendant's detention was again classified as "pending
investigation" and the relevant time-limit continued to apply. If,
however, the case was referred back for additional investigation
but the investigators had already used up all the time authorised
for detention "pending investigation", a supervising prosecutor
could nevertheless extend the detention period for one additional
month starting from the date on which he received the case file.
Subsequent extensions could be granted only if the detention
"pending investigation" had not exceeded eighteen months (Article
97).
60. If the authorised detention period had expired and no
information about an extension order had been communicated to the
director of the remand centre, the latter had to release the
detainee by his own decision (Article 11). A prosecutor and his
deputy had a duty to release anyone who had been detained
unlawfully or after expiry of the detention period authorised by
law or by a judicial decision (Article 11 and also section 33 з 2
of the Federal Law on Prosecutors' Offices in the Russian
Federation, No. 2202-I of 17 January 1992).
61. The investigator could issue a reasoned decision
discontinuing the criminal proceedings, which he had to sign and
date. A copy of the decision had to be sent to the prosecutor. At
the same time the suspect and the victim had to be informed of the
decision in writing and have the procedure for lodging an appeal
explained to them (Article 209).
THE LAW
I. Alleged violation of Article 5 з 1 of the Convention
62. The applicant alleged a violation of Article 5 з 1 (c) of
the Convention in that his detention pending trial had been
unlawful at least from 24 July to 12 August 1999. The relevant
part of Article 5 з 1 provides:
"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...".
63. The Government submitted that the applicant had not been
found guilty by any judicial decision. In those circumstances his
detention could "hardly be considered reasonable" and he should
have applied for compensation for unlawful prosecution and
detention.
64. The Court reiterates that the expressions "lawful" and "in
accordance with a procedure prescribed by law" in Article 5 з 1
essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However,
the "lawfulness" of detention under domestic law is not always the
decisive element. The Court must in addition be satisfied that
detention during the period under consideration was compatible
with the purpose of Article 5 з 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an
arbitrary fashion (see {Jecius} v. Lithuania, No. 34578/97, з 56,
ECHR 2000-IX, and Baranowski v. Poland, No. 28358/95, зз 50 - 52,
ECHR 2000-III).
65. The Court observes, and it has not been disputed by the
parties, that after expiry of the detention period authorised by
the prosecutor's order of 29 July 1998 (see paragraph 21 above)
and until the District Court's decision of 20 January 2000
prolonging the application of the preventive measure, there was no
decision - either by a prosecutor or by a judge - authorising the
applicant's detention pending trial.
66. In the period from 4 March to 20 May 1999 and again from 6
October 1999 to 20 January 2000 the applicant was kept in
detention on the basis of the fact that the criminal case against
him had been referred to the court competent to try the case (see
paragraphs 28 and 43 above).
67. The Court has already examined and found a violation of
Article 5 з 1 of the Convention in a number of cases concerning
the practice of holding defendants in custody solely on the basis
of the fact that a bill of indictment has been lodged with the
trial court. The Court has held that the practice of keeping
defendants in detention without a specific legal basis or clear
rules governing their situation - with the result that they may be
deprived of their liberty for an unlimited period without judicial
authorisation - was incompatible with the principles of legal
certainty and protection from arbitrariness, which are common
threads throughout the Convention and the rule of law (see
{Jecius}, cited above, зз 60 - 64, and Baranowski, cited above, зз
53 - 58).
68. The Court sees no reason to reach a different conclusion in
the present case. It reiterates that for the detention to meet the
standard of "lawfulness", it must have a basis in domestic law.
The Government, however, did not point to any legal provision
which permitted a defendant to continue to be held once the
authorised detention period had expired. The Russian Constitution
and the rules of criminal procedure vested the power to order or
prolong detention pending trial in prosecutors and courts (see
paragraph 54 above). No exceptions to that rule were permitted or
provided for, no matter how short the duration of the detention.
As noted above, during the relevant period there was neither a
prosecutor's order nor a judicial decision authorising the
applicant's detention. It follows that the applicant was in a
legal vacuum that was not covered by any domestic legal provision.
69. Furthermore, in the period from 20 May to 6 October 1999 no
domestic authority assumed responsibility for the applicant's
continued detention. The District Court ordered that the case be
referred back for additional investigation, thus shifting the
responsibility for the applicant's detention onto the prosecution,
but the Prosecutor General's Office did not agree with that
decision and challenged it, first on appeal and then by way of
supervisory review proceedings. Even after the intervention of the
Minister of Justice himself, who pointed out that the Prosecutor
General's Office had unlawfully refused to extend the applicant's
detention in breach of his constitutional right to liberty, the
deputy Prosecutor General did nothing to remedy the violation and
failed to specify, in his reply to the Minister, the specific
basis of the applicant's detention. In fact, it appears that by
that time the unlawfulness of his detention was fully apparent to
the Prosecutor General's Office. The legal basis was so
conspicuously lacking that the prosecutor L. sent a non-procedural
faxed communication to the director of the remand centre where the
applicant was detained, prohibiting his release (see paragraph 40
above). The Court finds it particularly disturbing that the
prohibition emanated from the prosecutor, who had no apparent
authority to extend the applicant's detention. What is more, his
primary function was to ensure compliance with the rules of
criminal procedure in remand centres, and the Code of Criminal
Procedure and the Federal Law on Prosecutors' Offices imposed on
him a statutory duty to release anyone detained without a legal
basis (see paragraph 60 above). It is also a source of concern to
the Court that the non-procedural communication was deemed by the
director of the remand centre to constitute sufficient grounds for
not releasing the applicant, and thereby not discharging his legal
obligation to release the person held in custody after the
authorised detention period had expired (ibid.).
70. Finally, the Court observes that, although the District
Court upheld the pre-trial detention measure in respect of the
applicant on 20 January 2000, it did not give any reasons for its
decision. In this connection, the Court reiterates that the
absence of any grounds given by the judicial authorities in their
decisions authorising detention for a prolonged period of time is
incompatible with the principle of protection from arbitrariness
enshrined in Article 5 з 1 (see {Stasaitis} v. Lithuania, No.
47679/99, з 67, 21 March 2002).
71. The District Court's decision did not set a time-limit for
the applicant's continued detention or refer to the provisions of
the Code of Criminal Procedure on which it was based. This left
the applicant in a state of uncertainty as to the legal basis and
grounds for his detention after that date. Its failure to give
reasons for its decision was all the more regrettable since the
applicant had by then spent more than ten months in custody
without a valid decision by a court or a prosecutor. In these
circumstances, the Court considers that the District Court's
decision of 20 January 2000 did not afford the applicant the
adequate protection from arbitrariness which is an essential
element of the "lawfulness" of detention within the meaning of
Article 5 з 1 of the Convention.
72. It follows that during the period from 4 March 1999 until
his release on 4 February 2000 there was no "lawful" basis for the
applicant's detention pending trial.
There has thus been a violation of Article 5 з 1 of the
Convention.
II. Alleged violation of Article 5 з 3 of the Convention
73. The Court will also examine whether the applicant's right
to trial within a reasonable time or to release pending trial,
guaranteed under Article 5 з 3 of the Convention, was respected.
Article 5 з 3 provides:
"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 trial."
74. The Government made no comments on the merits of the
complaint.
A. Period to be taken into consideration
75. The Court observes that the applicant's detention pending
trial lasted from 11 September 1997, the date on which he was
detained in Switzerland, until 4 February 2000, the day of his
release. The total duration thus amounted to two years, four
months and twenty-four days. The Court has competence ratione
temporis to examine the period after the ratification of the
Convention by Russia on 5 May 1998. In carrying out its
assessment, it will not lose sight of its above finding that the
final period of the applicant's detention pending trial until his
release was not in accordance with the provisions of Article 5 з 1
of the Convention (see Goral v. Poland, No. 38654/97, зз 58 and
61, 30 October 2003, and {Stasaitis}, cited above, зз 81 - 85).
B. The reasonableness of the length of detention
76. The lawfulness of, and grounds for, the applicant's
continued detention were examined by the District Court on 14 July
and 13 November 1998 and by the City Court on 3 August and 9
December 1998. In their decisions the courts confirmed the
lawfulness of the applicant's detention by reference to the sole
fact that he had been charged with a serious criminal offence.
77. The Court observes that Russian criminal-procedure law, as
it stood at the material time, allowed a defendant to be remanded
in custody and held in detention pending trial on the sole ground
of the dangerous nature of the crime committed by the accused (see
paragraph 55 above). Accordingly, the domestic courts were not
required to demonstrate the existence of any other grounds
warranting the person's detention.
78. According to the Court's constant case-law, the gravity of
the charge cannot by itself serve to justify long periods of
detention pending trial (see Rokhlina v. Russia, No. 54071/00, з
66, 7 April 2005; Panchenko v. Russia, No. 45100/98, з 102, 8
February 2005; and Ilijkov v. Bulgaria, No. 33977/96, з 81, 26
July 2001). This is particularly true in cases such as the present
one where the characterisation in law of the facts - and thus the
sentence faced by the applicant - was determined by the
prosecution without judicial control of the issue as to whether
the evidence gathered supported a reasonable suspicion that the
applicant had committed the offence imputed to him.
79. The Court reiterates that 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, warrants a departure from the rule
of respect for individual liberty. Any system of mandatory
detention pending trial is incompatible per se with Article 5 з 3
of the Convention, it being incumbent on the domestic authorities
to establish and demonstrate the existence of concrete facts
outweighing the rule of respect for individual liberty (see
Rokhlina, cited above, з 67). Shifting the burden of proof to the
detained person in such matters is tantamount to overturning the
rule of Article 5 of the Convention, a provision which makes
detention an exceptional departure from the right to liberty and
one that is permissible only in exhaustively enumerated and
strictly defined cases (see Ilijkov, cited above, зз 84 - 85, with
further references).
80. The Court finds that by failing to address concrete
relevant facts and by relying solely on the gravity of the
charges, the authorities prolonged the applicant's detention on
grounds which cannot be regarded as "sufficient". The authorities
thus failed to justify the applicant's continued detention pending
trial (see Rokhlina, cited above, з 69).
There has therefore been a violation of Article 5 з 3 of the
Convention.
III. Alleged violation of Article 5 з 4 of the Convention
81. The applicant complained under Article 5 з 4 of the
Convention that his complaint about his unlawful detention had
never been examined because on 16 August 1999 the Preobrazhenskiy
District Court had refused to consider its merits. Article 5 з 4
provides:
"4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful."
82. The Government submitted that the judicial documents
relating to that period had been prematurely destroyed due to a
lack of space in the archives. They made no comments on the merits
of the complaint.
83. The Court reiterates that Article 5 з 4, in guaranteeing to
persons arrested or detained a right to take proceedings to
challenge the lawfulness of their detention, also proclaims their
right, following the institution of such proceedings, to a speedy
judicial decision concerning the lawfulness of that detention and
ordering its termination if it proves unlawful (see Rokhlina,
cited above, з 74, with further references).
84. In the present case the applicant's complaint about the
unlawfulness of his detention was not examined on the ground that
the criminal case against him had been submitted for trial in the
meantime (see paragraph 42 above). The District Court expressly
refused to rule on whether the applicant's detention during that
period had been lawful. It follows that the applicant was denied
the right to a judicial decision concerning the lawfulness of his
detention pending trial. Moreover, the Court observes that no such
ground for discontinuing proceedings concerning the lawfulness of
detention pending trial was provided for in domestic law.
There has therefore been a violation of Article 5 з 4 of the
Convention.
IV. Alleged violation of Article 6 з 1 of the Convention
85. The applicant complained under Article 6 з 1 of the
Convention about a breach of the "reasonable-time" requirement as
regards the length of the criminal proceedings against him.
Article 6 з 1 provides:
"In the determination of... any criminal charge against him,
everyone is entitled to a... hearing within a reasonable time by
[a]... tribunal..."
86. The Government submitted that from 28 March 1994 to 28
April 1998 the applicant had been a fugitive from justice and that
his flight had delayed the criminal proceedings against him. The
case had been a complex one because the applicant had changed his
depositions on many occasions and because letters rogatory had
been sent to Kazakhstan and Austria. Thus, the length of the
proceedings had been accounted for by "objective causes".
Furthermore, an inquiry carried out by the Prosecutor General's
Office had not confirmed the allegation that the applicant's right
to be informed of the discontinuation of criminal proceedings
against him in a timely fashion had been violated because he had
been informed of that decision by telephone.
A. Period to be taken into consideration
87. As regards the starting-point of the criminal proceedings,
there is no dispute between the parties that they commenced in
1992. The Court need not decide whether the period during which
the applicant absconded to Switzerland should be deducted from the
overall duration (but see Girolami v. Italy, judgment of 19
February 1991, Series A No. 196-E, з 13) because, in any event, it
has competence ratione temporis to take into account only the
period after 5 May 1998, the date when the Convention was ratified
by Russia.
88. The determination of the final date of the proceedings is
more difficult in the circumstances of the present case. According
to the Court's case-law, the period to be taken into consideration
in determining the length of criminal proceedings normally ends
with the day on which a charge is finally determined or the
proceedings are discontinued (see, among many authorities,
Kalashnikov v. Russia, No. 47095/99, з 124, ECHR 2002-VI).
89. On the other hand, the Convention institutions have
consistently taken the view that Article 6 is, in criminal
matters, "designed to avoid that a person charged should remain
too long in a state of uncertainty about his fate" (see
{Stogmuller} v. Austria, judgment of 10 November 1969, Series A
No. 9, p. 40). It means that the period to be taken into
consideration lasts until the situation of the person concerned
has ceased to be affected as a result of the charges levelled
against him and the uncertainty concerning his legal position has
been removed. If a decision to discontinue criminal enquiries is
made, the person ceases to be affected and is no longer suffering
from the uncertainty which Article 6 seeks to limit, from the
moment that decision is communicated to him (see X. v. the
Netherlands, No. 9433/81, Commission decision of 11 December 1981,
Decisions and Reports 27, p. 233).
90. The Court observes that the Government produced a copy of a
decision discontinuing the criminal proceedings against the
applicant which bore the date of 28 April 2000. It notes that,
under domestic law (see paragraph 61 above), the applicant was
entitled to be served ex officio with a written copy of the
decision to discontinue the criminal proceedings against him.
91. The Court cannot accept the Government's contention that
service of the decision had been impossible because the
investigator had not known the applicant's address (see paragraph
50 above). Firstly, it is peculiar that the investigators
authorised the departure of the applicant, a suspect in a criminal
case, to another State but did not note the address where he could
be reached if necessary. Furthermore, it was accepted that the
investigator had the applicant's phone number and could contact
him at that number. Hence, when calling the applicant on the
phone, the investigator could have inquired about his address.
Finally, a copy of the decision could have been served on the
applicant's counsel in Moscow.
92. Furthermore, the Court is not satisfied that the decision
discontinuing the criminal proceedings against the applicant was
indeed issued on the date indicated therein, namely 28 April 2000.
It observes that on 27 June 2000 the head of a department of the
Prosecutor General's Office formally refused the applicant's
counsel's request for discontinuation of the proceedings against
the applicant (see paragraph 49 above). The Government did not
explain why the authority supervising the investigation of the
criminal case would have been unaware of a decision to discontinue
the proceedings which had allegedly been made three months
earlier. This omission was still more inexplicable, given that the
investigator had been under a statutory obligation to inform the
supervising prosecutor of any such decision (see paragraph 61
above). A further cause of doubt for the Court is the fact that in
2004, in other words, almost four years later, the Ministry of the
Interior, the very authority which had allegedly issued the
decision to discontinue the proceedings, was not in a position to
produce a copy of it, referring the applicant's counsel back to
the Prosecutor General's Office (see paragraphs 51 and 52 above).
93. The Court finally notes that for the first time the full
text of the decision discontinuing the criminal proceedings
against the applicant was enclosed with the Government's
observations of 1 April 2004, submitted in response to the Court's
enquiry about the current status of those proceedings.
94. In the particular circumstances of the present case, the
Court considers that the uncertainly in the applicant's legal
position as regards the criminal charges brought against him was
removed only once the applicant could take cognisance of the full
text of the decision discontinuing the criminal proceedings. This
happened some time in April 2004 when the Court's letter enclosing
the Government's observations of 1 April 2004 reached the
applicant's representative. The Court therefore accepts 15 April
2004 as the end date of the proceedings at issue. Hence, in the
post-ratification period the criminal proceedings against the
applicant lasted five years and eleven months.
B. Compliance with the "reasonable-time" requirement
95. The Court reiterates that the reasonableness of the length
of the 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,
Rokhlina, cited above, з 86).
96. The Court is not convinced by the Government's arguments
that the length of the proceedings was due to the complexity of
the case, which related only to two counts of fraud and forgery,
or to "objective causes". It considers, rather, that the conduct
of the domestic authorities led to substantial delays in the
proceedings. In this connection it notes that for almost two years
in the post-ratification period the applicant was held in custody
- a fact which required particular diligence on the part of the
courts dealing with the case to administer justice expeditiously
(see Rokhlina, cited above, з 89).
97. Thus, the opening of the trial in 1999 was delayed by
several months because, as the District and then City Courts
subsequently determined, the rights of the defence had been
unlawfully restricted and the severing of the case against Mr
Smolenskiy had been procedurally defective. A further delay was
attributable to the conduct of the Prosecutor General's Office, as
it refused to abide by the courts' decisions and sought to
overturn them by way of supervisory review proceedings. After the
case was set down for trial, it does not appear that any hearings
took place between October 1999 and January 2000. Finally, the
most significant delay resulted from the domestic authorities'
persistent failure to inform the applicant about the status of the
criminal proceedings against him. The latter delay spanned several
years.
98. Having regard to the foregoing, the Court considers that
the length of the proceedings did not satisfy the "reasonable-
time" requirement. Accordingly, there has been a breach of Article
6 з 1 of the Convention.
V. Application of Article 41 of the Convention
99. 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."
A. Pecuniary damage
100. The applicant claimed 140,000 US dollars (USD) in respect
of pecuniary damage. This amount represented his loss of earnings
as chairman of the board of the Jambul Commercial Bank
(Kazakhstan) during the twenty-eight months of his detention.
101. The Government contested this claim. They noted, firstly,
that only the period of unlawful detention which the applicant had
complained about could be taken into consideration. In any event,
the applicant could have sought compensation for unlawful
prosecution and detention before the domestic authorities, but had
not done so. His claim was therefore not justified.
102. The Court notes that the decision to prefer criminal
charges against the applicant was not the subject of its review in
the present case. There was no causal link between the violations
found and the alleged loss of earnings. The Court therefore finds
no reason to award the applicant any sum under this head.
B. Non-pecuniary damage
103. The applicant claimed 15,000 euros (EUR) in respect of non-
pecuniary damage.
104. The Government submitted that the amount of compensation
should be determined on the basis of the Court's case-law in
similar cases, such as the case of Kalashnikov v. Russia (cited
above). They maintained that the applicant's complaints under
Article 6 з 1 were ill-founded and that no compensation should be
awarded.
105. The Court notes that it has found a combination of
particularly grievous violations in the present case. The
applicant, who was never convicted of any criminal offence, spent
more than two years in custody and the overall length of the
criminal proceedings against him was excessive. His detention was
unlawful for more than ten months and, when "lawful", was not
based on sufficient grounds. Finally, he was denied the right to
have the lawfulness of his detention examined. In these
circumstances, the Court considers that the applicant's suffering
and frustration cannot be compensated for by a mere finding of a
violation. Making its assessment on an equitable basis, the Court
awards the entire amount claimed by the applicant under this head,
plus any tax that may be chargeable.
C. Costs and expenses
106. The applicant claimed an unspecified amount for the costs
incurred in connection with the extradition proceedings in
Switzerland. Relying on documentary evidence, he further claimed
25,400 Russian roubles (RUR) for his representation before the
domestic courts by Ms Moskalenko, and RUR 28,800 and RUR 28,925
for his representation in Strasbourg by Ms Moskalenko and Ms
Orozalieva respectively. He further claimed the equivalent of USD
6,044.14 which he had spent on personal hygiene articles and food
during his detention.
107. The Government submitted that the extradition costs had
not been related to the substance of his complaints to the Court.
Ms Orozalieva's fees in connection with the Strasbourg proceedings
were not to be reimbursed because she had never been officially
appointed as his representative before the Court. As to Ms
Moskalenko's fees, the Government submitted that the applicant had
failed to produce any documents showing that these amounts had
actually been paid.
108. The Court notes that the extradition proceedings fall
outside the scope of the present application and that the
applicant's complaints concerning the conditions of detention were
declared inadmissible. Accordingly, these expenses are not to be
reimbursed. On the other hand, the Court is satisfied, on the
basis of the documents and receipts produced, that the applicant
incurred certain costs in connection with his representation by Ms
Moskalenko and Ms Orozalieva in the domestic and Strasbourg
proceedings. Regard being had to the fact that a part of his
application was declared inadmissible, the Court awards him EUR
2,500 in respect of costs and expenses, plus any tax that may be
chargeable.
D. Default interest
109. 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
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 5 з 1 of
the Convention;
2. Holds that there has been a violation of Article 5 з 3 of
the Convention;
3. Holds that there has been a violation of Article 5 з 4 of
the Convention;
4. Holds that there has been a violation of the "reasonable-
time" requirement of Article 6 з 1 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, 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) EUR 15,000 (fifteen thousand euros) in respect of non-
pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros) in respect of
costs and expenses;
(iii) any tax that may be chargeable;
(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;
6. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 2 March 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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