VLADIMIR NIKOLAYEVICH FEDOROV v. RUSSIA - 48974/09 (Judgment : No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) Violation of ...) [2017] ECHR 480 (30 May 2017)

In the case of Vladimir Nikolayevich Fedorov v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Helena Jäderblom, President,
          Branko Lubarda,
          Helen Keller,
          Dmitry Dedov,
          Pere Pastor Vilanova,
          Georgios A. Serghides,
          Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 9 May 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 48974/09) 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 Vladimir Nikolayevich Fedorov (“the applicant”), on 6 August 2009.

2. The applicant was represented by Mr Ye.A. Toporov, a lawyer practising in Yaroslavl. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. The Russian Government (“the Government”) were initially represented by Mr G. Matyuskin, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant complained that he had been remanded in custody without relevant and sufficient grounds and that his right to family visits while on remand had been unlawfully restricted.

4. On 14 April 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1957 and lives in Yaroslavl.

A. Applicant’s arrest and detention

6. On 19 February 2009 the applicant, former head of the department of pharmacology at the Yaroslavl State Medical Academy, was arrested on suspicion of bribe-taking.

7. On 20 February 2009 the Leninskiy District Court of Yaroslavl (“the District Court”) remanded the applicant in custody. The court held as follows:

“On the basis of [the submitted documents] it appears that [the applicant] is the head of the department of pharmacology at the [Yaroslavl State Medical Academy], so a person with organisational/executive functions; the witnesses in the case are students at the above [Academy], who had been taking or were to take pharmacology exams.

When questioned as a suspect [the applicant] refused to testify, citing Article 51 of the Constitution of the Russian Federation.

During the crime-scene inspection on 19 February 2009, 500-rouble and 1,000-rouble banknotes were discovered in various parts of the [applicant’s office], the origin of which [the applicant] explained as personal savings.

One of the [witnesses] in the case made a statement expressing concern as to the possible exertion of pressure on him by [the applicant], as well as to the possible emergence of difficulties for him in further studies.

The above confirms the conclusions of the investigator that, if not detained, the suspect might exert pressure on witnesses, destroy evidence or otherwise obstruct the course of justice. ...”

8. On 26 February 2009 the applicant was charged with eight counts of bribe-taking under Article 290 § 2 of the Russian Criminal Code.

9. On 3 March 2009 the Yaroslavl Regional Court (“the Regional Court”) upheld the decision of 20 February 2009 on appeal.

10. On 11 March 2009 the applicant was dismissed from the post of head of the department of pharmacology at the Yaroslavl State Medical Academy.

11. On 16 April and 17 June 2009 the District Court extended the applicant’s detention until 19 June and 31 July 2009 respectively. On both occasions the court held that the grounds relied on by the court when applying the custodial measure still persisted, and that the applicant was charged with eight counts of a serious crime, committed between December 2007 and February 2009 and punishable by three to seven years’ imprisonment. He was further suspected of having committed another fifteen similar offences, in respect of which he had refused to testify. He had confessed only in part and had refused to testify as either a suspect or an accused. Although the applicant had been dismissed from his post, he remained on good terms with his colleagues from the pharmacology department, including its acting head. He could therefore have access to information and documents which might be of interest to him. All of the above, as well as the position which the applicant had taken in the proceedings, gave the court grounds to believe that, if released, he might exert pressure on witnesses (the students at the Medical Academy), destroy evidence or otherwise interfere with the proceedings. In particular, according to the investigator’s submissions made before the court, two more witnesses in the case had explained that they had had problems passing their pharmacology exams and that they believed it to be a means of making them change their position in the case in respect of the applicant. Lastly, the court held that, in view of the above circumstances, the custodial measure could not be replaced by a more lenient preventive measure.

12. On 28 April and 3 July 2009 the Regional Court upheld the above decisions on appeal.

13. On 30 July 2009 the District Court further extended the applicant’s detention until 19 September 2009. The court held that some of the grounds on which it had relied when extending the applicant’s detention were no longer valid. However, it noted the gravity of the charges against the applicant, the fact that he was suspected of having committed a further fifteen similar offences and that three more criminal cases had been opened against him in that connection in February-March 2009, and the fact that on 29 July 2009 seventeen other criminal cases had been opened against him on suspicion of twenty-nine criminal offences. The court further relied on the applicant’s refusal to give evidence as either a suspect or an accused and the potential for him to influence the witnesses (the Academy’s students), destroy evidence and otherwise obstruct the course of justice. The court found unconvincing the applicant’s argument to the effect that the students had already taken their pharmacology exams and were on summer holidays, since this did not exclude the risk of the applicant’s meeting them outside the Academy. The court therefore found that it would not be appropriate to apply a more lenient preventive measure.

14. On 14 August 2009 the Regional Court upheld the above decision on appeal.

15. On 16 September 2009 the charges against the applicant were finalised to include twenty-six counts of bribe-taking and forgery of official documents under Articles 290 § 2 and 292 § 1 of the Russian Criminal Code.

16. On 17 September 2009 the applicant was released against an undertaking not to leave the city of Yaroslavl.

17. On 18 February 2010 the District Court convicted the applicant of twenty-six counts of bribe-taking under Article 290 § 2 of the Russian Criminal Code and imposed a conditional sentence of four years and six months’ imprisonment.

B. Restrictions on family visits

18. On 5 March 2009 the applicant asked the investigator to allow his wife to visit him in the remand prison.

19. On 23 March 2009 the investigator refused the request, because the applicant’s case was being investigated and a visit by his wife might obstruct the establishment of the truth. The applicant found out about that decision on 8 May 2009 after lodging a complaint with the investigating department of the Yaroslavl regional prosecutor’s office.

20. On 13 May, 10 June and 24 June 2009 the applicant applied for permission for his wife and daughter to visit him.

21. On 18 May, 15 June and 29 June 2009 respectively, the investigator again refused the applicant’s requests, relying on the ongoing investigation and the risk of the family visits obstructing the establishment of the truth.

22. Meanwhile, on 1 June 2009 the District Court found unlawful the decision of 23 March 2009 refusing the applicant’s request to see his wife and obliged the investigator to reconsider the applicant’s request for a family visit.

23. On 2 July 2009 the District Court found the decision of 15 June 2009 unlawful and obliged the investigator to grant the applicant’s request.

24. On 24 July 2009 the investigator decided to allow the applicant’s wife to visit the applicant in the remand prison, but limited the visit to fifteen minutes. The decision further stipulated that the visit had to take place in the presence of the investigator.

25. The applicant challenged the ruling that the visit was limited to fifteen minutes and had to take place in the presence of the investigator.

26. On 11 August 2009 the Leninskiy District Court found the decision of 24 July 2009, in so far as it limited the duration of the visit and imposed the presence of the investigator, unlawful. The court further obliged the investigator to grant the applicant permission to see his wife in accordance with the domestic law.

27. On 27 August 2009 the investigator decided to allow the applicant to see his wife. The decision did not impose a restriction on the duration of the visit. However, according to the applicant, it was never communicated to him or his wife. As a result, he did not see his family until 17 September 2009 when the custodial measure was lifted.

28. In view of the repeated violations of the applicant’s rights, the Yaroslavl regional prosecutor’s office sent the head of the investigating department an information letter on the inadmissibility of the practice of limiting the constitutional rights of defendants and on the need to examine the issue of imposing disciplinary sanctions on the investigator in charge of the applicant’s case.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Detention during criminal proceedings

29. For a summary of the relevant domestic law and practice governing detention matters, see Zherebin v. Russia (no. 51445/09, §§ 16-18 and 24-25, 24 March 2016).

B. Family visits to detainees

30. For a summary of the relevant domestic law and practice governing the granting of family visits to detainees, see Tereshchenko v. Russia (no. 33761/05, §§ 57-60, 5 June 2014).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

31. The applicant complained that he had been detained during the investigation notwithstanding the absence of relevant and sufficient reasons. He relied on Article 5 § 3 of the Convention, which reads:

“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 ...”

A. The parties’ submissions

32. The Government contested the applicant’s allegation. They submitted that the length of his detention was due to the complexity of the case and the discovery, in the course of the pre-trial investigation, of further criminal activity by the applicant, which required the carrying out of additional investigative measures. Thirty-two witnesses were questioned during the investigation and the case file comprised twelve volumes. The domestic court assessed all the pertinent circumstances relating to the applicant’s personality and his family situation. The investigating authority provided the court with information on the applicant’s official position and on the newly discovered criminal activity revealed during the investigation. The court took into consideration that the witnesses were students who were in some ways dependent on the professors of the pharmacology department managed by the applicant before his dismissal and the fact that they could face difficulties in this connection when taking their exams. During the active stage of the investigation and the gathering of evidence it was therefore necessary to isolate the applicant from society. Once all the facts of the applicant’s criminal activity had been established and the evidence gathered, it was no longer necessary to keep him in detention and the custodial measure was therefore lifted. The proceedings against the applicant were conducted diligently, and there was therefore no violation of his rights under Article 5 § 3 of the Convention.

33. The applicant maintained his complaint. He submitted, in particular, that since 11 March 2009 he had no longer been the head of the department of pharmacology at the Yaroslavl State Medical Academy and therefore the risk of his tampering with witnesses had no longer existed. The gravity of the charges against him and the discovery of new criminal activities could not justify his continued detention. Nor could his continued detention be justified by his refusal to testify, a right which, along with the presumption of innocence, was guaranteed by the Constitution. The courts ignored the fact that he had no criminal record, had positive references from his workplace and outstanding professional achievements, that he had a permanent place of residence and a family, and suffered from a number of chronic health conditions which required qualified medical assistance. All of those factors made it clear that there had been no risk of his absconding, resuming criminal activity and exerting pressure on witnesses. The domestic court had not indicated one single instance of his putting pressure on witnesses or otherwise interfering with the investigation. His state of health had considerably deteriorated in detention, and on 11 October 2009 he had been designated as having a third-category disability.

B. The Court’s assessment

1. Admissibility

34. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

35. The applicable general principles have been summarised in Zherebin (cited above, §§ 49-54, with further references).

36. The applicant was arrested on 19 February 2009 and released against an undertaking not to leave his place of residence on 17 September 2009. The period to be taken into consideration is therefore six months and twenty-seven days.

37. The Court notes that, when deciding on the issue of the applicant’s detention during the investigation, the domestic authorities advanced two principal reasons for keeping him in custody, namely that he had been charged with serious offences and that he might interfere with the investigation by putting pressure on witnesses or destroying evidence.

38. As regards the domestic authorities’ reliance on the gravity of the charges, the Court accepts that this is one of several factors which should be taken into consideration, in particular since this element, as in Russian law, is one of the pre-conditions for remanding an accused person in custody. Whereas the Court has held that the gravity of the charges cannot by itself serve to justify long periods of detention (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005), it is satisfied that the domestic courts interpreted the domestic law correctly when considering whether the charges against the applicant were such that remand in custody could be ordered.

39. As to the domestic authorities’ reliance on the likelihood of the applicant’s exerting pressure on witnesses and destroying the evidence, the Court observes that the existence of the above-mentioned risk was explained by the applicant’s influence as the former head of the pharmacology department at the Yaroslavl State Medical Academy, which could enable him, even after he had been dismissed from his post, to make the witnesses - students at the Academy - change their statements and to have access to documents which might be of interest to the investigation. In such circumstances, the Court is prepared to accept that the courts could have validly presumed that the risk of the applicant’s exerting pressure on witnesses or destroying the evidence existed, that it outweighed the arguments put forward by the applicant regarding his personality, family situation and so on, and that the application of a non-custodial measure would not have ensured the proper conduct of the pre-trial investigation.

40. The Court concludes, therefore, that there were relevant and sufficient grounds for the applicant’s detention during the investigation. The assessment of these reasons, however, cannot be detached from the actual length of time the applicant was remanded in custody. Accordingly, it remains to be ascertained whether the judicial authorities displayed “special diligence” in the conduct of the proceedings.

41. In the present case, the applicant was remanded in custody for almost seven months. As soon as the pre-trial investigation was completed and the charges against him were finalised, he was released against an undertaking not to leave his place of residence. The Court notes that there is nothing in the material submitted to show any significant period of inactivity on the part of the prosecution or the court. In such circumstances, it cannot be said that the competent domestic authorities did not display special diligence in handling the applicant’s case.

42. There has accordingly been no violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

43. The applicant complained that throughout his pre-trial detention he had been denied the right to see his family. He relied on Article 8 of the Convention, which reads:

“1. Everyone has the right to respect for his private and family life ...

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. The parties’ submissions

44. The Government acknowledged that the restriction of the applicant’s right to family visits during his pre-trial detention amounted to an interference under Article 8 of the Convention. However, they considered that the applicant had lost his victim status as the domestic authorities had acknowledged and redressed the violation.

45. The applicant submitted that although on 27 August 2009 the investigator had decided to allow him to see his wife, that decision had never been enforced as neither the applicant nor his wife had been informed of it. Consequently, throughout the whole period of his pre-trial detention the applicant had not been afforded an opportunity to see his family.

B. The Court’s assessment

1. Admissibility

46. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). Turning to the circumstances of the present case, the Court notes that the breach of the applicant’s right to respect for his family life was acknowledged by the domestic authorities (see paragraphs 22, 23 and 26 above). As regards the issue of redress, the Court notes that the decision of 27 August 2009 granting the applicant’s application for a family visit could have been regarded as adequate redress for the alleged breach of his rights under Article 8 of the Convention, had it actually been enforced. However, it transpires from the applicant’s submissions, which were not contested by the Government, that regardless of the above-mentioned decision, he was never afforded an opportunity to have a family visit while in pre-trial detention (see paragraph 27 above). In such circumstances, the Court concludes that the applicant has not lost his victim status in relation to the alleged violation of Article 8 of the Convention.

47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

48. The Court takes note of the Government’s acknowledgment of interference and the domestic authorities’ acknowledgement of a violation under Article 8 of the Convention. In those circumstances, and having regard to its case-law (see Tereshchenko, cited above, §§ 114-37; Moiseyev v. Russia, no. 62936/00, §§ 243-56, 9 October 2008; and Vlasov v. Russia, no. 78146/01, §§ 120-27, 12 June 2008), the Court concludes that there has been a violation of Article 8 of the Convention on account of the restriction of the applicant’s right to family visits during his pre-trial detention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

49. 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

50. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

51. The Government considered that if the Court were to find a violation of the Convention, the Court’s judgment in this respect should in itself constitute sufficient just satisfaction for any non-pecuniary damage suffered by the applicant.

52. The Court observes that it has found a violation of Article 8 of the Convention. It considers that the applicant must have suffered stress and frustration as a result, which cannot be compensated by a mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 6,000 in respect of non-pecuniary damage.

B. Costs and expenses

53. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

C. Default interest

54. The Court considers it appropriate that the default interest rate 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. Declares the application admissible;

2. Holds that there has been no violation of Article 5 § 3 of the Convention;

3. Holds that there has been a violation of Article 8 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final, in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 30 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Helena Jäderblom
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> VLADIMIR NIKOLAYEVICH FEDOROV v. RUSSIA - 48974/09 (Judgment : No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) Violation of ...) [2017] ECHR 480 (30 May 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/480.html Cite as: ECLI:CE:ECHR:2017:0530JUD004897409, [2017] ECHR 480, CE:ECHR:2017:0530JUD004897409