EUROPEAN COURT OF HUMAN RIGHTS
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:
PROCEDURE
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
discontinued.
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
them.
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'
case.
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
file.
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
concerned."
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
Federation...
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
measure
"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
fine.
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
trial."
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
38).
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
temporis.
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
circumstances.
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
insufficient.
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
years.
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
law.
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
reputation.
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
1998.
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
bills.
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
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
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
satisfaction.
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
President
Vincent BERGER
Registrar
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