CASE OF GONTMAKHER v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)
Branko Lubarda;Dmitry Dedov;Helena Jäderblom
5. The applicant was born in 1952 and lives in Bellevue, Washington, USA. He is a president of Global Fishing Inc., a corporation which was the largest importer of crab to the United States of America. 6. On 29 June 2007 the Investigating Committee of the Ministry of the Interior of the Russian Federation opened a criminal investigation into crab poaching in Russia’s exclusive economic zone in the Bering Sea and the Sea of Okhotsk. The investigation concerned the charges of engagement in organised criminal activities, unlicensed fishing activities in Russia’s exclusive economic zone and money laundering. The decision to open the investigation identified Global Fishing Inc. as a major purchaser of the crab illegally harvested in the said region. 7. On 20 September 2007 the applicant was arrested in a hotel in Moscow. His passport was confiscated. 8. On 21 September 2007 the Tverskoy District Court of Moscow authorised the applicant’s detention pending investigation. In particular, the court noted: “When deciding that [the applicant] should be detained [pending investigation], the court notes that he is suspected of having committed a grave and serious offence, that he does not have a permanent residence in Russia, that there are reasons to believe that, if released, the applicant might abscond or continue his criminal activity, destroy the evidence or in any other way interfere with the criminal proceedings against him. Under such circumstances, application of any restrictive measure other than deprivation of liberty would not be feasible”. 9. On 27 September 2007 the Investigating Committee formally charged the applicant with engagement in organised criminal activities, money laundering and unlicensed fishing activities in Russia’s exclusive economic zone. 10. On 10 October 2007 the Moscow City Court upheld the decision of 21 September 2007 on appeal. 11. On 16 November 2007 the District Court extended the applicant’s detention until 29 February 2008. The applicant’s lawyers attended the hearing. The applicant was unable to attend for health reasons. He asked to be released on bail or alternatively on personal surety given by the chief rabbi of Russia. He presented to the court positive character references from two U.S. senators. He further argued that he was not fit for detention for illhealth. In this respect he relied on the opinion prepared by his family doctor, which indicated that the applicant suffered from arthritis, high cholesterol, kidney stones, chronic pyelonephritis, gastritis, loss of hearing in the right ear, nasal allergies, frequent headaches and dizziness. He also submitted a guarantee signed by Mr Sh. who undertook to accommodate the applicant at his place of residence in Moscow pending investigation. The court dismissed the applicant’s arguments noting as follows: “The court takes into account the arguments presented by the defence, including the references concerning his character. It discerns no new material facts or circumstances justifying [the applicant’s] release or application of another restrictive measure. It follows from the materials submitted that [the applicant] is charged with a very serious offence, he is a national of another state. The medical documents presented do not demonstrate that [the applicant] is unfit for detention. The court concludes that the grounds for the [applicant’s] detention have not ceased to exist. Accordingly the restrictive measure applied cannot be lifted or replaced with a less strict one, including the bail.” 12. On 26 December 2007 the City Court upheld the decision of 16 November 2007 on appeal. 13. On 21 February 2008 the District Court extended the applicant’s detention pending investigation until 29 May 2008. The court reiterated that the applicant’s detention was justified due to the gravity of the charges and lack of a place of permanent residence in Russia. The application for release on bail or personal surety was dismissed. On 26 March 2008 the City Court upheld the decision of 21 February 2008 on appeal. 14. On 28 May 2008 the District Court extended the applicant’s detention until 29 August 2008. The court reiterated practically verbatim the reasoning used in the previous court order. On 23 June 2008 the Moscow City Court upheld the court order of 28 March 2008 on appeal. 15. On 19 August 2008 the City Court extended the applicant’s detention until 29 November 2008. According to the applicant, the court referred to the gravity of the charges and his “significant financial possibilities”. On 2 October 2008 the Supreme Court of the Russian Federation upheld the court order of 19 August 2008 on appeal. In particular, the Supreme Court noted: “It follows from the materials in the case-file that [the court] took into account the gravity of the charges against [the applicant]..., and it is reasonable to assume that, if at large, he may abscond..., or continue his criminal activities, or threaten the witnesses, the victims and other parties to the proceedings, or destroy the evidence... that may be found in foreign companies or interfere with investigation in any other way. ... [I]n view of the extreme complexity and scope of the case, there are no grounds for [the applicant’s] release. Furthermore, the grounds for the applicant’s detention have not ceased to exist and there are no exclusive circumstances rendering the lifting or replacement of the restrictive measure... possible.” 16. On 20 November 2008 the City Court extended the pre-trial detention in respect of the applicant, E. and S., his co-defendants, noting as follows: “According to the materials submitted, E., S. and [the applicant] are charged with a number of offences, including especially serious ones for which a custodial sentence exceeding two years can be applied in the event of conviction. It follows from the investigator’s motion, submitted materials and his explanation given in court, that the criminal case is very complex, fourteen people were indicted, a big volume of investigative activities have been carried out, including those under way in different regions in the Russian Federation; there are complex forensic expert examinations ongoing, the responses to the inquiries sent are still pending, including the ones concerning international criminal assistance, the investigators have planned numerous activities aimed at establishment of facts to be proved and completion of the investigation. ’s arguments that the defendants’ detention should be extended are convincing and justified and that the grounds for extension of their detention are exceptional regard being had to the nature of the charges and pending investigative activities aimed at the completion of the investigation. In the course of investigation the information was obtained that, should they be released, the defendants might abscond or interfere with the proceedings. ’ character, the court concludes that there are sufficient grounds to believe that, should they be released, the defendants might abscond, put pressure on witnesses and other parties to the proceedings, try to conceal or destroy evidence in order to obstruct justice. Under such circumstances... E., S., and [the applicant] should be detained pending investigation which means that the grounds and the circumstances ... taken into consideration by the court when deciding on their detention have not changed and it is still necessary to detain them. In view of the above, it is not possible to use a less strict restrictive measure in respect of E., S., and [the applicant], including release on bail. When deciding on the extension of the defendants’ detention, the court takes into account the circumstances as required by [law], notably their family status, age, health condition, and character information submitted by the defence.” 17. On 14 January 2009 the Supreme Court upheld the decision of 20 November 2008 on appeal. The court dismissed the applicant’s argument that the City Court’s findings that he might abscond, continue criminal activities, obstruct justice, destroy evidence had been erroneous and unsubstantiated. 18. On 17 February 2009 the applicant received an amended and finalised bill of indictment. 19. On 19 February 2009 the City Court extended the detention of the three defendants, including the applicant, until 20 March 2009 in view of pending investigation. It noted in respect of the applicant as follows: “Even though... [the applicant] does not have a criminal record, is married and have a child, prior to his arrest was employed and had a permanent source of income, he is charged with a number of very serious offences which entail, in case of conviction, a custodial sentence exceeding two years and which, according to the investigators’ version, have been committed by an organised criminal group managed by E. and [the applicant]... The applicant is a national of another state, he does not have a permanent place of residence in the Russian Federation... The above information about the applicant’s character and the gravity of the charges are, in the court’s opinion, sufficient to assume that he may abscond, despite his and his defence’s declarations and assurances. Furthermore, according to the report of policemen Z. and V., the applicant..., if released, is planning to flee abroad and continue criminal activities connected to illegal fishing in the exclusive economic zone of the Russian Federation, put pressure on witnesses, try to destroy physical evidence. In addition, [the applicant] repeatedly tried to bribe the officials in order to influence the investigation. Besides, E., S. and [the applicant] have been trying to get in touch with other members of the organised criminal group who are still at large. It follows from the testimony of witness P., that American companies are taking steps to secure [the applicant’s] release.” 20. On 23 March 2009 the Supreme Court upheld the decision of 19 February 2009 on appeal. 21. On 11 March 2009 the City Court extended the applicant’s detention pending the defendants’ study of the case file, which comprised 160 volumes, until 20 June 2009. The court referred to the gravity of the charges against the applicant and the lack of permanent residence in Russia. It further reiterated that the applicant might put pressure on witnesses, obstruct justice or abscond. On 21 April 2009 the Supreme Court upheld the decision of 11 March 2009 on appeal. 22. On 28 May 2009 the City Court extended the applicant’s detention until 20 September 2009. The court noted that the defendants, including the applicant, and eighteen lawyers that represented them had not completed the study of the case file. As to need for detention pending investigation, the court reiterated the formula which it used for prior extensions. On 16 July 2009 the Supreme Court upheld the decision of 28 May 2009 on appeal. 23. On 26 August 2009 the applicant completed the study of the case file. 24. On 15 September 2009 the City Court extended the applicant’s detention until 20 December 2009 noting that the applicant’s co-defendants and their lawyers needed further time to complete the study of the case-file. Referring to the gravity of the charges against the applicant and the lack of a permanent residence and of “established social links” in Russia, the court noted that the applicant might abscond, put pressure on witnesses and other parties to the proceedings in order to obstruct justice. On 29 October 2009 the Supreme Court upheld the decision of 15 September 2009 on appeal. 25. On 4 December 2009 the City Court received the applicant’s casefile and on 17 December 2009 it extended the defendants’ pre-trial detention until 4 June 2010 noting as follows: “[The defendants] have been remanded in custody. This restrictive measure corresponds to the nature and seriousness of the charges against them. The circumstances underlying the [defendants’] remand in custody have not ceased to exist. Notwithstanding personal surety and a possibility of bail proposed by [the applicant], the fact that [the applicant] and S. have minor children, the length of their pre-trial detention, the measure of restraint earlier imposed on [the defendants] should remain unchanged.” 26. On 25 February 2010 the Supreme Court upheld the decision of 17 September 2009 on appeal. 27. It appears that on an unspecified date the applicant’s case was transferred for trial to the Kamchatka Regional Court. 28. On 27 May 2010 the Regional Court extended the defendants’ pretrial detention until 4 September 2010 noting that the circumstances underlying their remand in custody had not ceased to exist. 29. On 2 September 2010 the Regional Court extended the defendants’ detention until 4 December 2010 reiterating verbatim its reasoning of 27 May 2010. 30. On 29 November 2010 the Regional Court considered it possible to release the defendants on bail in the amount of 5,000,000,000 Russian roubles (RUB). The applicants submitted that they were unable to pay such bail. The court reasoned that the bail in a lesser amount would not ensure the defendants’ appearance before it and extended their detention until 4 March 2011 reiterating its earlier reasoning. 31. On 16 December 2010 the jury delivered a not-guilty verdict in the applicant’s case. The applicant was released on the same date. On 17 January 2011 the Regional Court issued the relevant judgment advising the applicant of his right to rehabilitation. 32. On 27 April 2011 the Supreme Court upheld the judgment of 17 January 2011 on appeal. 33. On 21 May 2008 in an article entitled Special Protection for the Mafia («Спецприкрытие для мафии») Rossiyskaya Gazeta, an official national newspaper, published an interview about the criminal investigation with General Ts., the head of the department of the Investigating Committee of the Ministry of the Interior of the Russian Federation. In the interview Ts. referred to the applicant as the head of an international criminal organisation which had been engaged in illegal fishing activities conducted in Russia’s territorial waters. 34. On 28 and 29 May 2008 General Ts. gave two interviews about the criminal investigation which were broadcast by Channel One, the national TV channel. Ts. reiterated his previous statements alleging that the applicant had been the head of the illegal fishing business and referred to him as “the don of the crab mafia”. 35. On 28 February 2013 the Regional Court granted the applicant’s claims for damages against the Ministry of Finance of the Russian Federation in part. The court awarded the applicant RUB 83,208,240 in respect of lost earnings and RUB 603,000 as reimbursement of legal costs and expenses. 36. On 21 May 2013 the Regional Court upheld the judgment of 28 February 2013 on appeal. 37. On 24 October 2014 the District Court dismissed the applicant’s claims for pecuniary damages resulting from criminal prosecution against the Ministry of Finance of the Russian Federation. 38. On 20 March 2015 the City Court upheld the judgment of 24 October 2014 on appeal.