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FIRST
SECTION
CASE OF GUSEV v. RUSSIA
(Application
no. 67542/01)
JUDGMENT
STRASBOURG
15
May 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gusev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
George Nicolaou, judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 24 April 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 67542/01) 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 Russian national, Mr Pavel Vladimirovich
Gusev (“the applicant”), on 29 December 2000.
- The
applicant, who had been granted legal aid, was represented by Ms O.
Tseytlina, a lawyer practising in St Petersburg. The Russian
Government (“the Government”) were initially represented
by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
Mrs V. Milinchuk.
- The
applicant alleged, in particular, that the conditions of his
detention had been inhuman and that his pre-trial detention had been
unlawful and excessively long.
- By
a decision of 9 November 2006, the Court declared the application
partly admissible.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in St Petersburg.
A. Criminal proceedings against the applicant and his
placement in custody
1. First criminal case (no. 1-1536\00)
- In
1998 a criminal case was opened against the applicant on suspicion of
theft, an offence under Article 158 § 1 of the Criminal Code.
The applicant signed an undertaking to appear.
- On
2 February 2000 the Primorskiy District Court of St Petersburg
convicted the applicant of theft and sentenced him to probation of an
unspecified duration. Counsel for the applicant appealed.
- On
5 July 2000 the St Petersburg City Court upheld the conviction but
relieved the applicant from punishment by virtue of the Amnesty Act
of 26 May 2000 (cited in paragraph 45 below).
2. Second criminal case (no. 1-2415\00 or 968711)
- In
early 1999 a criminal case was opened against the applicant on
suspicion of his having stolen, in January 1999, car parts valued at
200 Russian roubles (RUB, less than 8 euros). The prosecutor
preferred the charge of theft aggravated by repetition and
substantial damage, an offence under Article 158 § 2 of the
Criminal Code.
- On
19 April 2000 the Primorskiy District Court ordered the applicant’s
retrieval and arrest for the following reasons:
“On 2 February 2000 [the applicant] received a
copy of the bill of indictment in this criminal case. He was
summoned, by a phone call, to the court hearing at 10 a.m. on 18
April 2000, but he did not appear at that time.
Due to [the applicant’s] absence the examination
of the case was adjourned until midday on 19 April 2000 to find out
whether there had been any valid reasons for his absence. At about 4
p.m. on 18 April 2000 [the applicant’s] mother called the court
on the phone and said that she and her son had been advised belatedly
by her relatives – who had taken the phone call – about
the court hearing on 18 April, and that was the reason why her son
had not appeared at the court. [The applicant’s] mother also
told [the registry] that [the applicant] had no illness preventing
him from appearing before the court and no medical certificate.
During that conversation [the applicant’s] mother was informed
that the court hearing was scheduled for midday on 19 April 2000.
At the court hearing at midday on 19 April 2000 [the
applicant] failed to appear once again. The case was rescheduled for
4 p.m. on 19 April 2000. At about 4 p.m. [the applicant’s]
mother again telephoned the court and said that, although she and her
son had known about the scheduled court hearing, he would not appear
before the court unless the summons was sent by mail. Under these
circumstances the court has reasons to believe that [the applicant]
is absconding from justice, that he refuses to appear before a court
and interferes with timely examination of the case. In this
connection the court considers it necessary to order retrieval of
[the applicant] and vary the measure of restraint to that of
placement in custody.”
- On
23 April 2000 the applicant was taken into custody.
- Counsel
retained by the applicant’s mother asked the Primorskiy
District Court to commission an expert examination of the applicant’s
mental health and to release him pending trial.
- On
10 May 2000 the District Court held as follows:
“According to the available case file materials,
[the applicant] was repeatedly, on three occasions between 18 and 19
April 2000, summoned to a court hearing and failed to appear without
a valid reason. [The applicant] is charged with an offence which is
classified as a serious crime, and in such cases a custodial measure
may be imposed for the sole reason of the dangerousness of the
committed offence. [The applicant’s] explanation that he did
not appear in court because his mother had asked him not to is
without substance because [the applicant] is an adult who should have
been aware of the consequences of a violation of the undertaking
given by him, as well as of the fact that liability for his failure
to appear would be his and not his mother’s.”
- The
court remanded the applicant in custody sine die and ordered a
psychiatric examination. It appears that the decision was not
appealed against. The following hearing in the case was fixed for 25
September 2000.
- On
25 September 2000 counsel for the applicant asked the District Court
to vary the legal characterisation of the applicant’s act, to
prefer a lesser charge of non-aggravated theft and to discontinue
proceedings on the basis of the Amnesty Act of 26 May 2000. The
District Court granted the lawyer’s request, finding as
follows:
“The investigators had characterised Mr Gusev’s
acts as repetitive theft, having regard to the fact that he had
already been charged [with theft] on 11 August 1998. However, on 2
February 2000 Mr Gusev was convicted of that offence... and, by the
appeal decision of 5 July 2000... was relieved from punishment. Thus,
the acts of Mr Gusev lack the constituent element of repetition.
It has not been shown that Mr Gusev caused substantial
damage to the victim P. because he is charged with theft of a car
jack and a pump valued at 200 roubles. It does not appear that the
small amount of 200 roubles was important for the victim and there is
no information about his income or dependants.”
- Having
thus established that the aggravating circumstances had ceased to
exist or had not been made out, the District Court characterised the
applicant’s act as non-aggravated theft under Article 158 §
1 of the Criminal Code and discontinued the second criminal case
against him on the basis of the Amnesty Act of 26 May 2000. However,
the District Court held that the applicant should remain in custody
on the basis of the arrest warrant of 22 September 2000 (see
below).
3. Third criminal case and continued pre-trial
detention
- In
the meantime, on 17 May 2000 an investigator with the Primorskiy
District Police Department of St Petersburg initiated a third
criminal case against the applicant (case no. 160556) on
suspicion of his having stolen certain items from a car in December
1999 which were valued at RUB 4,600 (EUR 170). The investigator
designated the act as repetitive theft, an offence under Article 158
§ 2 of the Criminal Code.
- On
22 September 2000 Ms M., an investigator with the investigations
department of the Primorskiy District Police Department, ordered the
applicant’s placement in custody. On the same day the arrest
warrant was approved by a deputy prosecutor of the Primorskiy
District.
- On
20 and 28 November 2000 counsel for the applicant lodged a complaint
against the detention order of 22 September 2000. He submitted that
the order had been unlawful and unjustified because it had referred
to the “gravity” rather than the “dangerous nature”
of the offence charged.
- On
28 December 2000 counsel lodged a further complaint. He claimed, in
particular, that Article 5 § 1 (c) of the Convention did not
provide for such a ground for pre-trial detention as the “gravity
of the offence” and that the prosecutor’s statements
about the applicant’s intention to abscond or obstruct the
establishment of the truth were not substantiated. He further pointed
out that a copy of the order had not been served on the applicant and
the procedure for lodging an appeal had not been explained to him. In
any event, his authorised detention had expired on 22 November
2000 and no documents in the case file indicated that it had been
extended. Finally, the applicant’s lawyer pointed to the
appalling conditions of the applicant’s pre-trial detention.
- On
the same date the Primorskiy District Court dismissed the challenge.
It found as follows:
“The decision to impose the chosen measure of
restraint was read out to [the applicant] on 25 September 2000 at the
Primorskiy District Court of St Petersburg following the
pronouncement of the judgment. Likewise, the procedure for lodging an
appeal against the detention order was explained to him. However,
[the applicant] refused to sign that document, and [the investigator
M.], lacking professional experience, omitted to make an appropriate
note thereof. At present the periods of preliminary investigation and
pre-trial detention of [the applicant] have been extended in
accordance with the law.
[The applicant] is charged with a serious crime and its
dangerousness alone may be, pursuant to Article 96 of the Code of
Criminal Procedure, the ground for... holding him in custody. In
these circumstances, dangerousness of the crime to which the law
refers is in itself sufficient to anticipate undesirable conduct on
the part of the accused, including continuation of criminal
activities and absconding upon commission of a crime, in other words
the reference in the law to the dangerous nature of a crime enables
the investigative authorities to anticipate these very events to
which the [European] Convention refers.
No information showing that [the applicant] cannot
remain in the investigative ward was provided to the court.”
- On
3 and 30 January 2001 counsel appealed against the court decision of
28 December 2000. He indicated, in particular, that the provision of
the Code of Criminal Procedure relied upon by the first-instance
court had been struck down as incompatible with the Constitution by
the Constitutional Court in the part which provided for placement in
custody on the sole ground of the dangerous nature of an offence.
- On
6 February 2001 the St Petersburg City Court dismissed the appeal as
unsubstantiated.
- In
the meantime, on 16 January 2001 the third criminal case against the
applicant and his co-defendants was submitted for trial by the
Primorskiy District Court. On 24 January 2001 the applicant’s
lawyer made a new request for the applicant’s release pending
trial.
- On
1 February 2001 the Primorskiy District Court issued a decision to
schedule the first trial hearing for 3 May 2001. In the same decision
the court dismissed the lawyer’s request for release, stating
that the measure of restraint had been imposed “lawfully and
reasonably, taking into account the gravity of the charge and the
information on his character”. It did not specify for how long
the applicant should remain in custody. Counsel for the applicant
appealed, relying on the same grounds as before. On 27 March 2001 the
St Petersburg City Court upheld the decision of 1 February 2001.
- It
appears that the hearing scheduled for 3 May 2001 was adjourned.
- On
6 July 2001 the Primorskiy District Court again adjourned the
criminal proceedings until 25 September 2001, because counsel for the
applicant’s co-defendant failed to appear. It also extended the
applicant’s pre-trial detention until 16 October 2001 as,
in the court’s opinion, “[his] release would impede a
thorough, complete and objective examination of the case”.
- The
applicant appealed against the decision. He pointed, in particular,
to the inhuman and degrading conditions of his detention in facility
no. IZ-47/1. He also submitted that he had a permanent residence in
St Petersburg and lived with his disabled mother, five younger
brothers and four sisters and that there were no grounds to believe
that he would abscond. A supplementary appeal on points of law was
lodged by his lawyer.
- On
4 September 2001 the St Petersburg City Court dismissed the appeals,
finding the extension order had been lawful and justified because
“the arguments set out in the appeals had been known to the
trial court which [had] had due regard to them”.
- On
an unspecified date the applicant’s mother made another request
for the applicant’s release pending trial.
- On
26 September 2001 the Primorskiy District Court examined the request
and, upon finding that the maximum detention period of nine months
would expire in October 2001, ordered the applicant’s release
against a written undertaking not to leave the city.
- By
a judgment of 10 July 2003, the Primorskiy District Court convicted
the applicant of aggravated theft and sentenced him to four years’
imprisonment conditional on two years’ probation. The applicant
was relieved from the punishment by virtue of the Amnesty Act of 26
May 2000. The applicant did not appeal against the conviction.
B. The applicant’s detention in remand centre IZ
47/1 “Kresty”
- On
23 April 2000 the applicant was taken into custody and placed in
remand centre IZ-47/1 of St Petersburg, commonly known as “Kresty”.
- The
applicant was held in cell 430 until 1 May 2000, then in cell 106
until 9 August 2000 and in cell 79 after that date. In his
submission, each cell measured six to eight sq. m and accommodated
ten to thirteen persons simultaneously. Part of each cell was
occupied by a table, toilet bowl and bed, so that the living space
was 0.2 to 0.4 sq. m per inmate. The Government indicated the floor
space of each cell as 8 sq. m and asserted that the number of
detainees detained in each cell was impossible to establish as the
relevant documents had been destroyed.
- The applicant indicated that he had never had a
separate bed. In cell 430 he had shared the bed on the third
tier with two other inmates. In cell 106 he had not been allowed by
the informal “chief” of the cell to sleep on a bed, he
had slept on the floor or under the bed. In cell 79 he had shared the
bed on the third tier with another inmate. No bedding had been
provided by the facility, until 9 May 2000 he had slept on wooden
planks and covered himself with his clothing. In their
post-admissibility submissions the Government enclosed a certificate
issued by the remand centre director on 21 December 2006,
according to which the applicant had had a separate bed and personal
bedding at all times.
- In
support of his contentions, the applicant submitted written
statements by Mr P., who had been held in the same remand centre from
October 1997 to March 2000 and by Mr B., who had stayed there from
January 2001 to at least February 2005. Although they had not shared
cells with the applicant, they attested, in particular, to the
general overcrowding of the remand centre in 2001 and the lack of
sleeping places and bedding.
- The
applicant further submitted that the windows in all cells had bars
and iron shutters on them which blocked access to daylight and air.
The shutters covered the entire window and it was forbidden to open
them. The Government claimed that the cells had been “naturally
ventilated” through the holes in the walls. The applicant
denied that, indicating that ventilation holes in the walls had been
patched with concrete. In their initial submissions on the
admissibility and merits of the case, the Government indicated that
on 11 June 2001 the temperature in the cell had been 20.5o C.
In their submissions following the admissibility decision, the
Government enclosed a certificate issued by the director of the
remand centre on 21 December 2006. It said that the temperature
in the cells had been taken and recorded on a quarterly basis and the
average temperature had been 22o C in summer and
18o C in winter.
- The
Government stated that the cells had been equipped with sanitary
installations separated from the living space by a folding screen.
They enclosed a certificate issued by the director of the remand
centre on 27 December 2006 which attested to that fact. The
applicant submitted that there had been no folding screen and that it
had been prohibited to separate the cell from the toilet bowl located
about fifty centimetres from the table.
II. RELEVANT DOMESTIC LAW
A. Conditions of detention
- Section
22 of the Detention of Suspects Act (Federal Law no. 103-FZ of 15
July 1995) provides that detainees should be given free food
sufficient to maintain them in good health according to standards
established by the Government of the Russian Federation. Section 23
provides that detainees should be kept in conditions which satisfy
sanitary and hygienic requirements. They should be provided with an
individual sleeping place and given bedding, tableware and
toiletries. Each inmate should be afforded four square metres of
personal space in the cell.
B. Criminal Code (as worded at the material time)
- A repetition of criminal offences exists if the
suspect has committed two or more offences characterised under the
same provision of the Criminal Code (Article 16 § 1). Criminal
offences are not considered repetitive if the proceedings in respect
of the previously committed offence have been discontinued or if the
criminal record of that offence has been extinguished or purged
(Article 16 § 2).
- Article 158 § 1 established that simple theft was
punishable by up to three years’ imprisonment. Article 158 § 2
(b) and (g) established that repetitive theft entailing substantial
damage was punishable by up to six years’ imprisonment. Article
158 § 3 established punishment for theft committed by a person
who had been previously convicted of theft or extortion on two or
more occasions.
C. Amnesty Act of 26 May 2000
- On
26 May 2000 the State Duma of the Russian Federation adopted an act
of amnesty in commemoration of the 55th anniversary of the victory in
the Great Patriotic War of 1941-45 (Second World War).
- The Amnesty Act provided that criminal proceedings in
cases pending before investigative bodies or courts were to be
discontinued if, in particular, the person was charged with a
criminal offence committed before the entry into force of the Amnesty
Act and punishable with no more than three years’ imprisonment
(section 8 (a)).
- The Amnesty Act also provided that the convicts who
had been sentenced to probation should be relieved from punishment
(section 6).
- The
Amnesty Act was to be implemented by investigative bodies in respect
of suspects whose cases were being investigated or by courts in
respect of defendants whose cases had been submitted for trial
(section 1 of the State Duma Resolution no. 399-III on the procedure
for application of the Amnesty Act).
D. Placement in custody and detention pending trial
- The
Russian Constitution of 12 December 1993 establishes that a judicial
decision is required before a defendant can be detained or his or her
detention extended (Article 22). A decision ordering pre-trial
detention could be taken by a prosecutor or a court (Articles 11, 89
and 96 of the RSFSR Code of Criminal Procedure, the “CCrP”).
- Before 14 March 2001, pre-trial detention was
authorised if the accused was charged with a criminal offence
carrying a sentence of at least one year’s imprisonment
(Article 96 of the CCrP). The amendments of 14 March 2001
repealed the provision that permitted defendants to be remanded in
custody on the sole ground of the dangerous nature of the criminal
offence they have committed.
- After the arrest the suspect was placed in custody
“pending investigation” for an initial two-month period
(Article 97 of the CCrP). Further extensions could be granted by
prosecutors at ascending levels of jurisdiction.
- Once the investigation had been completed and the
defendant had received the charge sheet and finished reading the case
file, the file was submitted to a trial court. From that day the
defendant’s detention was “before the court” (or
“pending trial”). Until 14 March 2001 the Code of
Criminal Procedure set no time-limit for detention “pending
trial”. On 14 March 2001 a new Article 239-1 was inserted
which established that the period of detention “during trial”
could not normally exceed six months from the date the court received
the file.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of detention at the Kresty
remand centre had been inhuman and degrading and amounted to a breach
of Article 3 of the Convention which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
applicant maintained that the cells had been severely overcrowded,
that he had not had a separate bed, that there had been no
ventilation or privacy during the use of sanitary facilities.
Referring to the Court’s case-law, he submitted that the
cumulative effects of overcrowding, absence of ventilation, excessive
temperatures and lack of privacy had manifestly exceeded the “minimum
level of severity” required for the treatment to be in breach
of Article 3 of the Convention.
- The
Government conceded that at the material time the remand centre had
been overcrowded owing to “objective causes”, such as
lack of financial resources and high level of crime. The cells in
which the applicant had been held had had glass in the windows,
natural ventilation through holes in the walls and running water. The
Government maintained that the conditions of detention had been
generally compatible with applicable sanitary norms.
- Article 3,
as the Court has observed on many occasions, enshrines one of the
fundamental values of democratic society. The Convention prohibits in
absolute terms torture or inhuman or degrading treatment or
punishment, irrespective of the circumstances or the victim’s
behaviour (see Balogh v. Hungary, no. 47940/99,
§ 44, 20 July 2004, and Labita v. Italy [GC],
no. 26772/95, § 119, ECHR 2000-IV). The Court has
consistently stressed that the suffering and humiliation involved
must in any event go beyond that inevitable element of suffering or
humiliation connected with a given form of legitimate treatment or
punishment. Measures depriving a person of his liberty may often
involve such an element. In accordance with Article 3 of the
Convention the State must ensure that a person is detained under
conditions which are compatible with respect for his human dignity
and that the manner and method of the execution of the measure do not
subject him to distress or hardship exceeding the unavoidable level
of suffering inherent in detention (see Kudła v. Poland
[GC], no. 30210/96, §§ 92-94, ECHR 2000-XI).
- On
the facts, the Court notes that the parties’ accounts of
physical conditions of detention differ in many respects. However,
there is no need for the Court to establish the truthfulness of each
and every allegation, because it can assess compliance with Article 3
on the basis of the facts that have not been disputed by the
respondent Government.
- The
focal point for the Court’s assessment is the living space
afforded to the applicant in the Kresty remand centre. The parties
agreed that the cells had measured approximately 8 sq. m. The
applicant submitted that they had accommodated up to thirteen persons
instead of six they had been designed for; the Government
acknowledged that the centre had been overcrowded but claimed to be
unable to indicate the exact number of inmates owing to a lack of
documents. Written depositions by persons held in the same remand
centre at the material time corroborated the applicant’s
allegation of severe overcrowding and a shortage of sleeping places.
- It
further appears from the applicant’s submissions that, owing to
the lack of sleeping places, he had to take turns with other inmates
to rest and that, for several months he slept on the floor under the
bed. The Government’s reliance on the certificate asserting
that the applicant had been provided with a separate bed and
appropriate bedding does not convince the Court. At the
pre-admissibility stage the Government were not able to determine the
exact number of detainees in the cells where the applicant had been
detained and did not comment on the issue of bedding at all. The
Government’s post-admissibility assertion to a regular change
of bedding is of little evidential value since they were unable to
indicate for how many detainees the bedding had been provided.
- The
Court therefore finds it established to the standard of proof
required under Article 3 of the Convention that the cells in which
the applicant was held were overcrowded beyond their design capacity
and that the applicant had not had a sleeping place he could call his
own. Irrespective of the reasons for the overcrowding, the Court
reiterates that it is incumbent on the respondent Government to
organise its penitentiary system in such a way as to ensure respect
for the dignity of detainees, regardless of financial or logistical
difficulties (see Mamedova v. Russia, no. 7064/05, § 63,
1 June 2006).
- The
Court has frequently found a violation of Article 3 of the Convention
on account of a lack of personal space afforded to detainees (see
Khudoyorov v. Russia, no. 6847/02, § 104 et seq.,
ECHR 2005-... (extracts); Labzov v. Russia, no. 62208/00, § 44
et seq., 16 June 2005; Novoselov v. Russia, no. 66460/01,
§ 41 et seq., 2 June 2005; Mayzit v. Russia,
no. 63378/00, § 39 et seq., 20 January 2005;
Kalashnikov v. Russia, no. 47095/99, §§ 97
et seq., ECHR 2002-VI; and Peers v. Greece, no. 28524/95,
§§ 69 et seq., ECHR 2001-III). More specifically, the
Court reiterates that it has recently found a violation of Article 3
on account of an applicant’s detention in overcrowded
conditions in the same remand centre (IZ-47/1) and at the same time
(see Andrey Frolov v. Russia, no. 205/02, §§ 43-51,
29 March 2007).
- Having
regard to its case-law on the subject and the material submitted by
the parties, the Court notes that the Government have not put forward
any fact or argument capable of persuading it to reach a different
conclusion in the present case. The Court finds that the fact that
the applicant was obliged to live, sleep and use the toilet in the
same cell with so many other inmates was in itself sufficient to
cause distress or hardship of an intensity exceeding the unavoidable
level of suffering inherent in detention, and arouse in him feelings
of fear, anguish and inferiority capable of humiliating and debasing
him.
- There
has therefore been a violation of Article 3 of the Convention on
account of the conditions of the applicant’s detention in the
Kresty remand centre no. IZ-47/1 which the Court considers to be
inhuman and degrading.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 of the Convention that his
detention had been unlawful and unreasonably long. The relevant parts
of Article 5 read as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial...”
A. Lawfulness of the applicant’s detention
- The
applicant argued that he should have been released by virtue of the
Amnesty Act of 26 May 2000 immediately after it came into force.
Instead, the Amnesty Act had only been applied to him on the day when
the charge had been recharacterised as a lesser one. However, the
factual basis of the charge had remained the same as it had been on
the date of entry into force of the Amnesty Act. It followed that the
authorities had already been aware of the minor character of the
imputed offence on that date. Referring to the Court’s findings
in the case of Gusinskiy v. Russia (no. 70276/01, § 68,
ECHR 2004 IV), the applicant claimed that his detention after 26
May 2000 had been unlawful.
- The
Government claimed that the applicant’s detention had been
lawful. The Amnesty Act had not been applicable to him because the
prosecution had initially charged him with a serious crime. After the
District Court had preferred a lesser charge further to his
representative’s complaint, on 25 September 2000 the second
criminal case had been discontinued. The applicant, however, had
remained in custody pursuant to the arrest warrant of 22 September
2000 issued in the third criminal case. Again, the Amnesty Act had
not been applicable to him because of the gravity of the charge.
- The
Court reiterates that where the “lawfulness” of detention
is in issue, including the question whether “a procedure
prescribed by law” has been followed, the Convention refers
essentially to national law and establishes the obligation to conform
to the substantive and procedural rules of national law. It is in the
first place for the national authorities, notably the courts, to
interpret and apply domestic law. However, since under Article 5 §
1 failure to comply with domestic law entails a breach of the
Convention, it follows that the Court can and should exercise a
certain power to review whether this law has been complied with (see
Gusinskiy, cited above, §§ 62 and 66, with further
references).
- The
Court notes that it found the applicant’s detention
incompatible with Article 5 of the Convention in the Gusinskiy
case where the applicant was eligible for amnesty by virtue of the
Amnesty Act. The Court considered that “it would be irrational
to interpret the Amnesty Act as permitting detention of persons
against whom all criminal proceedings must be stopped” (see
Gusinskiy, cited above, § 68).
- On
the facts, the Court notes that the applicant was remanded in custody
on 23 April 2000 in the framework of the second criminal case on the
charge of repetitive theft causing substantial damage, an offence
under Article 158 § 2 of the Criminal Code. The legal basis for
his initial detention was the arrest warrant of 19 April 2000. On 10
May 2000 the District Court issued a further detention order which
was valid for the entire duration of the trial, in accordance with
the Russian legislation in force at that time (see paragraph 50
above).
- The
Court notes that the Amnesty Act of 26 May 2000 provided for
discontinuation of criminal proceedings in cases involving minor
offences punishable by up to three years’ imprisonment. On that
date of its coming into force the applicant was held in custody
awaiting trial for an offence under Article 158 § 2 of the
Criminal Code carrying up to six years’ imprisonment. He was
not therefore eligible for amnesty ipso jure and the
lawfulness of his detention was not affected by the Amnesty Act.
- On
5 July 2000 the City Court discontinued criminal proceedings in the
first criminal case against the applicant on the basis of the Amnesty
Act. However, neither the Amnesty Act nor the resolution on its
application required the domestic authorities to review the legal
designation of the charges in all criminal cases against the same
person following discontinuation of one or more sets of unrelated
proceedings. It follows that the decision of 5 July 2000 had no
bearing on the charge levelled against the applicant in the second
criminal case. In any event, even assuming that the repetition of
thefts could no longer be qualified as an aggravating circumstance,
the criterion of substantial damage was sufficient in itself to
support the initial legal characterisation under Article 158 § 2
of the Criminal Code. Thus, the applicant was still ineligible for
amnesty after 5 July 2000 and the legal basis for his detention
was unaltered.
- On
25 September 2000 the District Court granted counsel’s request
for recharacterisation of the applicant’s offence as
non-aggravated theft, and granted the application for the Amnesty
Act. Nevertheless, the applicant was not released because by that
time the investigator had issued a new arrest warrant against him in
the framework of the third criminal case. The arrest warrant of 22
September 2000 constituted a legal basis for the applicant’s
continued detention after 25 September 2000.
- In
the subsequent period until his release on 26 September 2001,
the applicant’s detention was covered by extension orders
issued by the District Court which tried the case against the
applicant. The trial court acted within its powers in making those
orders and there is nothing to suggest that they were invalid or
unlawful under domestic law. The question whether the reasons for
those decisions were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 § 3.
Since the applicant was charged with aggravated theft punishable by
up to six years’ imprisonment, the Amnesty Act found no
application in these proceedings and did not affect the lawfulness of
his detention. Its application only became possible after the
District Court sentenced the applicant to probation (see paragraph 45
above).
- It
follows that the entire period of the applicant’s detention had
a valid lawful basis. There has therefore been no violation of
Article 5 § 1 of the Convention.
B. Length of the applicant’s detention
- The
applicant submitted that his detention for eighteen months had been
unreasonably long, having regard to the minor charges (petty theft)
brought against him. He could not be held responsible for the delays
occasioned by absence of counsel for his co-defendants or illness of
the judge. The absence of his mother had not been a material factor
because he had always been represented by a lawyer.
- The
Government emphasised that the domestic time-limits had been
respected. The courts continued the custodial measure against the
applicant with regard to the gravity of the charges against him and
the existence of a risk of absconding. Some delays were justified by
reason of the absence of the applicant’s representative (his
mother), counsel for his co-defendants, or the illness of the judge.
- Under the Court’s case-law, the issue of whether
a period of detention is reasonable cannot be assessed in
abstracto. 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, among
other authorities, W. v. Switzerland, judgment of
26 January 1993, Series A no. 254-A, p. 15, § 30,
and Kudła v. Poland [GC],
no. 30210/96, § 110, ECHR 2000-XI).
- The presumption is in favour of release. As the Court
has consistently held, the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require him to be released
provisionally once his continuing detention ceases to be reasonable
(see, among other authorities, Castravet v. Moldova, no.
23393/05, § 30, 13 March 2007; McKay v. the
United Kingdom [GC], no. 543/03, § 41, ECHR
2006 ...; Jablonski v. Poland, no. 33492/96,
§ 83, 21 December 2000; and Neumeister v. Austria,
judgment of 27 June 1968, Series A no. 8, § 4).
- The
applicant was held in custody from 23 April 2000 to 26 September
2001. On the latter date he was released owing to the forthcoming
expiry of the maximum detention period established in domestic law.
The fact that the maximum time-limits permitted by the domestic law
were not exceeded may not be a decisive element in the Court’s
assessment. As the Court has previously found in other Russian cases,
the calculation of the domestic time-limits depended solely on the
gravity of the charges, which was decided upon by the prosecution and
was not subject to judicial review (see Shcheglyuk v. Russia,
no. 7649/02, § 43, 14 December 2006, and
Khudoyorov v. Russia, no. 6847/02, § 180,
8 November 2005).
- The
Court observes that Russian criminal procedure law, as it was worded
before the legislative amendments of 14 March 2001, allowed the
suspect to be held in detention on the sole ground of the dangerous
nature of the crime he was charged with (see paragraph 48 above).
Acting in accordance with these provisions, the domestic courts in
this case explicitly held that the “dangerous nature” of
the offence imputed to the applicant was, in itself, sufficient to
hold him in custody (see the District Court’s decisions of
10 May and 28 December 2000). In the subsequent period the
District Court also relied on other grounds, such as the applicant’s
“character” (see decision of 1 February 2001) or the risk
of interference with justice (see decision of 6 July 2001). The
decisions did not refer to any factual basis for these findings.
- According
to the Court’s constant case-law, although the severity of the
sentence faced by the applicant is a relevant element in the
assessment of the risk of absconding, the need to continue the
deprivation of liberty cannot be assessed from a purely abstract
point of view, taking into consideration only the gravity of the
offence (see Belevitskiy v. Russia, no. 72967/01, § 101,
1 March 2007; Ilijkov v. Bulgaria, no. 33977/96, §
81, 26 July 2001; and Letellier v. France, judgment of 26 June
1991, Series A no. 207, § 51). This is particularly relevant in
the Russian legal system, where the characterisation in law of the
facts – and thus the sentence faced by the applicant – is
determined by the prosecution without judicial review of the issue of
whether the evidence that has been obtained supports a reasonable
suspicion that the applicant has committed the alleged offence (see
Khudoyorov, loc. cit.). This systemic deficiency is
particularly salient in the circumstances of the second criminal case
against the applicant, where the prosecutor charged him with
aggravated theft, a “serious” offence in the domestic
classification, because the items stolen – about eight euros in
value – amounted to “substantial damage”. The
District Court did not scrutinise whether the prosecutor’s
designation of the offence was reasonable and whether it was
supported with appropriate evidence, although this was a crucial
element in determining whether the imputed crime was indeed “serious”
and consequently warranted the applicant’s placement in
custody. Only four months later, further to a complaint by counsel,
the District Court acknowledged that there had been no evidence
supporting the charge of “substantial damage”,
redesignated the offence as non-aggravated theft and discontinued the
second criminal case against the applicant by virtue of the Amnesty
Act.
- As
regards the grounds for detention other than the gravity of the
charges, the Court observes that the domestic courts did not explain
what the applicant’s “character” actually was or
why it was necessary for him to remain in custody. Nor did they
mention any specific facts supporting their finding that there
existed a risk of interference with justice. On the other hand, it is
a matter of serious concern for the Court that the courts took no
notice of the applicant’s arguments that he had a permanent
place of residence in St Petersburg and strong family ties with
his siblings and disabled mother, and other relevant facts which
mitigated the risk of his absconding. They insisted that it was
incumbent on the applicant to show that he should no longer remain in
custody (see District Court decision of 28 December 2000). As it
happened, the applicant’s release did not take place until the
maximum permitted period of detention was about to expire.
- 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 § 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 v.
Russia, no. 54071/00, § 67, 7 April 2005).
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, §§ 84-85, with further references).
- The
Court finds that by failing to address concrete relevant facts and by
relying mainly on the gravity of the charges, the authorities
extended 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, § 69).
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Damage
- The
applicant claimed 100,000 euros (EUR) in respect of compensation for
non-pecuniary damage.
- The
Government considered that the claim was excessive and that a finding
of a violation would constitute an adequate just satisfaction.
- The
Court observes that it has found a violation of the Convention
requirements in that the applicant was held, for one year and a half,
in inhuman and degrading conditions and was deprived of liberty
without relevant and sufficient reasons. 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 applicant
EUR 5,000 under this head, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed EUR 3,000 for thirty hours of work of his
representative Ms Tseytlina at EUR 100 per hour, EUR 1,000 for twenty
hours of work of Mr Koroteyev at EUR 50 per hour, and 400 pounds
sterling (GBP) for advice by Mr Leach and Mr Bowring. He further
claimed GBP 90 for administrative expenses, GBP 60 for postal and
copying expenses, and GBP 1,790 for translation of case documents at
the rate GBP 50 per 1,000 words. He submitted copies of translation
receipts.
- The
Government pointed out that only Ms Tseytlina, but not Mr Koroteyev,
Mr Leach or Mr Bowring, had been formally designated the applicant’s
representative before the Court. Furthermore, some translation
receipts did not indicate that they were related to the present case.
Finally, the Government emphasised that there was no evidence that
the applicant had disbursed any amounts to Ms Tseytlina.
- The
Court notes that Mr Koroteyev and British lawyers Mr Leach and Mr
Bowring were not formally designated as the applicant’s
representatives in the Convention proceedings. Accordingly, it
rejects the claim for their costs and translation expenses. It
further reiterates that some of the applicant’s complaints were
declared inadmissible and that the applicant had been granted EUR 750
in legal aid for his representation by Ms Tseytlina. Having regard to
the materials in its possession, it awards the applicant EUR 1,000 in
respect of costs and expenses, plus any tax that may be chargeable to
the applicant.
C. Default interest
- 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
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been no violation of
Article 5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage plus any tax that
may be chargeable, and EUR 1,000 (one thousand euros) in respect of
costs and expenses plus any tax that may be chargeable to the
applicant, to be converted into Russian roubles at the rate
applicable at the date of settlement;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
