CASE OF STAROKADOMSKIY v. RUSSIA (No. 2)
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1971 and lives in Moscow. 6. On 31 January 1998 the applicant was arrested on suspicion of murder. On 6 February 1998 he was charged with aggravated murder. Subsequently, the applicant and a number of other individuals (see Salmanov v. Russia, no. 3522/04, 31 July 2008) were accused of other violent crimes. The proceedings in relation to all these offences were joined into one case, which was investigated by a group of investigators from the Moscow prosecutor’s office. The investigation was completed in December 1998. 7. The applicant studied the case file in June and July 1999 and requested a trial by a jury. 8. On 19 July 1999 the Moscow city prosecutor approved the indictment and the case was submitted to the City Court for trial. The applicant was committed to stand trial on charges relating to a number of offences including conspiracy to commit murder. Fifteen other co-defendants were committed to stand trial on similar charges. 9. On 5 August 1999 the City Court noted that the majority of the defendants had opted to exercise their constitutional right to a trial by jury. However, as there were no juries in the City Court, it decided to send an inquiry to the Supreme Court of the Russian Federation as to where the case should be tried. The Supreme Court referred the case to the Moscow Regional Court, where juries were available. 10. On an unspecified date a judge of the Regional Court sent a request to the Constitutional Court of the Russian Federation, inviting it to rule on the compatibility of the Supreme Court’s interpretation of the jurisdictional rules with the Russian Constitution. On 17 February 2000 she suspended the proceedings pending a decision by the Constitutional Court and held that the defendants were to remain in custody because of the dangerousness of the criminal offences they had been charged with, which were classified as serious or particularly serious. 11. On 13 April 2000 the Constitutional Court issued a decision to the effect that the decision on the change of venue had been incompatible with the Russian Constitution. 12. In accordance with that ruling, on 14 June 2000 the Regional Court returned the case file to the Supreme Court, which decided on 6 September 2000 that the City Court was competent to try the case. 13. On 29 September 2000 the City Court scheduled the first hearing for 13 October 2000 before a bench consisting of a professional judge and two lay judges, but it was adjourned on the day because the presiding judge was sitting in another case. 14. In 2001 and 2002 the presiding judge was replaced by other judges of the City Court. The lay judges were replaced several times. 15. On 24 December 2001 the applicant asked the judge for additional time to study the case file. His request was left without reply. 16. Numerous hearings were scheduled between 2001 and early 2003. They were adjourned for various reasons, mainly because the prosecutor, interpreter and some of the defence lawyers failed to appear, but also because the presiding judge was involved in other proceedings in May and October 2001 and May, September and October 2002. 17. It appears that consideration of the merits began in March 2003, but hearings scheduled for 4 March and 29 April 2003 were again adjourned, inter alia, because several of the lawyers failed to appear. 18. On 12 March 2003 the trial judge ordered that the applicant be removed from the courtroom “until the closure of the oral pleadings” for contempt of court during the reading out of the indictment. He was kept away from the hearings that followed on 17 to 19, 24 and 25 March 2003. 19. The applicant was taken to a hearing on 9 April 2003, where he asked to be provided with a list of people to be called as witnesses at the trial. His request was left without reply. 20. Hearings scheduled for 26 January and 2 February 2004 were also adjourned. From February 2004 onwards the trial hearings were held in remand centre no. 77/1, where the applicant was being detained. On 11 and 16 February 2004 the trial judge refused to deal with a request from the applicant to be given reasons for the change of venue and a copy of the relevant court order. 21. On 10 March 2004 the trial judge ordered bailiffs to summons the absent witnesses and victims to a hearing scheduled for 16 March 2004, but not all of them were summonsed. On a number of occasions between March and July 2004 the judge reiterated his request. 22. On 1 July 2004 the trial bench (presiding judge M. and lay judges O. and L.) extended the defendants’ detention until 1 October 2004. 23. On 12 August 2004 the court closed the trial and started deliberations. 24. In October 2004 the governor of remand centre no. 77/1 wrote to the Moscow City Court on several occasions to say that the detention order in respect of the applicant had expired on 1 October 2004, and that a new detention order was required without delay. 25. On 18 October 2004 the City Court replied that since the trial bench was deliberating, it could not issue decisions concerning the detention of any of the defendants, including the applicant. 26. On 27 October 2004 the trial bench found the applicant guilty of a number of offences including conspiracy to commit murder, and sentenced him to ten and a half years’ imprisonment. The court held that the time he had spent in detention since 31 January 1998 should be counted towards his sentence. 27. On 10 November 2004 the court concluded its delivery of the judgment. It appears from its operative part of the judgment (dated 27 October 2004) that the trial bench decided to keep the applicant in detention as a preventive measure until the conviction became final and enforceable. 28. The applicant and the other defendants lodged an appeal. On 15 November 2005 the Supreme Court upheld the conviction, but reduced the applicant’s sentence to ten years’ imprisonment. 29. The applicant instituted proceedings under Article 125 of the Code of Criminal Procedure (“the CCrP”), alleging inaction on the part of the governor of the remand centre in failing to release him on 1 October 2004. On 17 January 2005 the Preobrazhenskiy District Court of Moscow dismissed the complaint, holding that the inaction in question could not be made the subject of proceedings under Article 125 of the CCrP. On 5 April 2005 the Moscow City Court set aside that decision and ordered a re-examination of the case, holding that a complaint in respect of a governor of a remand centre could not be processed under Article 125 of the CCrP. 30. According to the Government, on 14 October 2005 the authorities dismissed the applicant’s complaint and refused to initiate criminal proceedings against the governor of the remand centre for lack of corpus delicti. 31. In the meantime, in separate proceedings under Article 125 of the CCrP, the applicant argued that the prosecutor responsible for supervising detention facilities had acted unlawfully by failing to deal with the complaint concerning his detention after 1 October 2004. By a judgment of 4 February 2005 the Zamoskvoretskiy District Court of Moscow dismissed his case. On 7 April 2005 the City Court upheld that judgment. 32. Subsequently, the applicant brought civil proceedings against the remand centre, arguing that its governor had failed to release him on 1 October 2004. By that time, the most recent detention order had expired and thus between 1 October 2004 and the trial judgment there had been no valid order authorising his continued detention pending trial. By a judgment of 12 July 2005, the Preobrazhenskiy District Court of Moscow rejected his claim. On 24 November 2005 the Moscow City Court upheld that judgment. 33. During a trial the court is empowered to order, vary or cancel a preventive measure in respect of the defendant (Article 255 § 1 of the CCrP). In particular, “the court dealing with the case” is empowered to order extensions of the defendant’s detention (Article 255 § 3). If after the trial judge has started deliberations in the criminal case the term of detention meanwhile expires, it is not against the requirements of the CCrP for another judge of the same court to order an extension of the detention (Appeal Section of the Supreme Court of Russia decision nos. 47-O09-13 of 16 March 2009 and 44-O09-90 of 14 January 2010). 34. Deliberations take place in the deliberations room (Article 298 § 1), where the trial bench reaches its judgment and decides on the preventive measure (Article 299 § 1). After signing the judgment, the trial bench returns to the courtroom so that the presiding judge can deliver the judgment (Article 310 § 1). If only the introductory and operative parts of the judgment are read out, the court should explain the procedure for becoming acquainted with its full terms (Article 310 § 2). 35. Section 50 of the Custody Act (Federal Law no. 103-FZ of 15 July 1995) required at the relevant time that the governor of a detention facility should release a detainee upon receipt of an order to this effect. The governor should notify the authority in charge of the case that the authorised period of detention expires within twenty-four hours. If no extension order is received by the time the authorised period of detention expires, the governor must release the detainee. 36. Article 241 of the CCrP provides that criminal cases should be heard in public. A court may issue an order for a hearing in camera (i) if a public hearing could result in the disclosure of State secrets or other sensitive data; (ii) in cases concerning defendants under sixteen years of age; (iii) if a public hearing could result in the disclosure of information relating to the private life of the trial participants; or (iv) to guarantee the safety of the trial participants or their next of kin.