CASE OF PYATKOV v. RUSSIA
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicant was born in 1963 and lived before his arrest in Ufa, Republic of Bashkortostan. He is currently detained in Ufa IZ-3/1 remand prison. 6. On 24 November 2006 the applicant was arrested on suspicion of drug trafficking. 7. On 25 November 2006 he was charged with large-scale drug trafficking committed in conspiracy with other drug dealers. On the same date Leninskiy District Court (Ufa) examined the investigator’s request to remand the applicant in custody. The court held as follows: “Mr Pyatkov Yu.A. is charged with a serious offence, which is punishable by a term of imprisonment of more than two years. Moreover, Mr Pyatkov Yu. A. was previously convicted of criminal offences on several occasions; his most recent conviction was in 2006. Furthermore, Mr Pyatkov Yu.A. is a drug addict, and if released, he might engage in further criminal activities related to drugs in order to provide himself with drugs and improve his financial situation.” 8. Taking into account the above elements, the danger to society presented by the offences imputed to the applicant, and the need to secure the execution of his sentence, Leninskiy District Court remanded the applicant in custody. The applicant did not appeal against that decision. 9. On 23 January 2007 Leninskiy District Court extended the applicant’s detention until 17 May 2007, referring to the gravity of the charges against him. The court further held that the applicant was a drug addict, had a criminal record and if released he might abscond, continue his criminal activities or interfere with the proceedings, and noted that his detention was necessary in order to secure the execution of his sentence. The applicant did not appeal against that decision. 10. On 11 May 2007 Kirovskiy District Court (Ufa) extended the applicant’s detention until 17 August 2007. The court held, in particular, that the period fixed by the court for the applicant’s detention was not sufficient to allow a judge, who would receive the case for examination on the merits, to take a decision concerning the applicant’s detention during the trial. The court also held that the applicant was charged with a serious offence presenting a danger to society, and that if released he might continue criminal activities, abscond, or interfere with the proceedings. The court also noted that the applicant’s detention was necessary in order to secure the execution of the sentence. 11. On 14 August 2007 Kirovskiy District Court extended the applicant’s detention until 17 November 2007, on the same grounds as given in its decision of 11 May 2007. 12. On 29 September 2007 the applicant was presented with the final version of the charges. He was accused of several episodes of large-scale drug trafficking committed as a member of an organised criminal group. 13. On 22 October 2007 the applicant and his counsel started familiarising themselves with the materials of the criminal case as did the other twenty-nine defendants. According to the Government, the file consisted of 160 volumes. 14. On 15 November 2007 the Supreme Court of the Republic of Bashkortostan (“the Supreme Court”) extended the applicant’s detention until 17 February 2008, bringing its total duration to fourteen months and twenty-four days. In taking that decision the Supreme Court stated that the applicant was charged with a serious offence, and that if released he might flee from justice, engage in criminal activities or obstruct the establishment of the truth. 15. On 7 February 2008 the Supreme Court granted the investigation authorities’ request for the applicant’s detention to be extended until 17 May 2008, bringing its total duration to seventeen months and twenty-four days. The court held as follows: “Mr Pyatkov is charged with particularly serious offences punishable by more than two years’ imprisonment. The grounds on which he was initially remanded in custody ... had not changed. The investigation of the criminal case is particularly complex. These circumstances should be regarded as extraordinary circumstances which can serve as a basis for the extension of the defendant’s detention.” 16. In his appeal against that detention order the applicant requested that the preventive measure be changed to a written undertaking not to leave the town since he was suffering from a serious disease. 17. On 16 April 2008 the Supreme Court of the Russian Federation upheld the detention order of 7 February 2008. It found, in particular, that the fact that the applicant was under medical supervision in the remand prison because he had been diagnosed with Human Immunodeficiency Virus (“HIV”) could not be a ground for his release on a written undertaking. 18. On 15 May 2008 the Supreme Court, at the investigator’s request, extended the applicant’s detention until 24 May 2008, thus bringing its total duration to eighteen months. The court held as follows: “... the grounds on which his [the applicant’s] detention had been based had not changed. These grounds had been sufficient for placing him in detention, since he had been charged with particularly serious offences as a member of an organised criminal group. Therefore, the investigator’s request is duly reasoned and should be granted.” 19. On 20 May 2008 the Supreme Court examined the investigator’s request, supported by the prosecutor, for extension of the applicant’s detention beyond the maximum period of eighteen months. The investigator submitted that owing to the volume and complexity of the criminal case and the large number of co-defendants and their counsel, the applicant and his counsel needed additional time to familiarise themselves with the criminal case. The Supreme Court decided, referring to Article 109 of the Criminal Procedure Code (“the CCrP”, see Relevant domestic law below), to extend the applicant’s detention until 17 August 2008, bringing its total duration to twenty-one months. The court held as follows: “The term of Mr Pyatkov’s detention is to expire on 24 May 2008. As required by Article 109 § 5 of the CCrP, the investigation was completed and the materials of the criminal case presented to the applicant and his counsel no later than thirty days before the expiration of the maximum period of detention. However, it appears difficult to complete the pre-trial investigation by the above date, since the applicant and his counsel need additional time to comply with the requirements of Article 217 of the CCrP. The preventive measure applied to Mr Pyatkov had been duly justified in accordance with Article 108 of the CCrP, since he had been charged with a large number of particularly serious offences as a member of an organised criminal group and if released he might interfere with the proceedings or abscond, and therefore the court does not see any reason to alter the preventive measure.” 20. In his appeal against that extension order the applicant submitted, among other things, that having regard to his poor health, the absence of any intention to abscond or interfere with the proceedings, and also the fact that he had a permanent place of residence, he should have been released under a written undertaking. 21. On 29 July 2008 the Supreme Court of the Russian Federation examined the applicant’s appeal. It held, in particular, that the 142 volumes of the criminal case had been presented to the defendants, including the applicant, and their counsel, for their perusal, and that the investigation of that voluminous and complex criminal case had been carried out without any major delays. The Supreme Court dismissed the applicant’s appeal, finding as follows: “The large volume of evidence in the criminal case and the need to comply with the requirements of Article 217 of the CCrP in respect of all defendants and their counsel confirmed that the court [Supreme Court of the Republic of Bashkortostan] had correctly concluded that it was impossible to change the preventive measure applied to Mr Pyatkov and showed that there existed grounds, provided for in Article 109 § 7 of the CCrP, for further extension of the applicant’s detention. The materials of the case do not refer to any new circumstances which came to light after the preventive measure – namely his placement in custody – was lawfully imposed on Mr Pyatkov in accordance with Article 108 [of the CCrP] and which would make it necessary to cancel or change that measure. The court had every reason to believe, having regard to the lengthy period of the criminal activities concerned and their character, that if released Mr Pyatkov might interfere with the proceedings or abscond from the investigation and trial. The age [of the applicant] and [his] permanent place of residence are not sufficient grounds to cancel or change the measure of restraint. There is nothing to indicate that Mr Pyatkov cannot be detained in a remand prison due to his state of health. In those circumstances the court rightly found that there were grounds for extending Mr Pyatkov’s detention beyond eighteen months.” 22. The Supreme Court further extended the applicant’s detention on 14 August until 17 November 2008 and on 12 November 2008 until 17 February 2009 referring to the same grounds as in its decision of 20 May 2008. Those detention orders were upheld by the Supreme Court of the Russian Federation on 15 October 2008 and 12 February 2009 respectively. 23. On 12 February 2009 the Supreme Court extended the applicant’s detention until 17 May 2009, bringing its duration to twenty-nine months and twenty-four days. That decision was based on the same grounds as previous detention orders. 24. On 22 February 2009 the applicant appealed against the detention order of 12 February 2009. He informed the appeal court that he would submit additional grounds of appeal after he received a copy of the detention order of 12 February 2009. According to the applicant, on 24 February 2009 he submitted additional grounds of appeal in which he requested the appeal court to grant him leave to participate in the appeal hearing. He provided the Court with a copy of that request. The Government claimed that the applicant had not submitted a special request to take part in the hearing. However, they did not contest the authenticity of a copy of that request provided by the applicant to the Court. 25. In his appeal against the detention order of 12 February 2009 the applicant complained that the extension of his detention had been unlawful and was not based on sufficient grounds. He also complained that he was not provided with an opportunity to familiarise himself with the documents which had served a basis for extension of his detention. 26. On 6 March 2009 the applicant and his counsel finished familiarising themselves with the materials of the criminal case. 27. On 10 April 2009 the investigator in charge of the case informed the applicant that while the defendants were familiarising themselves with the criminal case, twenty volumes of the case file had been stolen. On 16 January 2009 criminal proceedings had been initiated in this respect and the lost volumes had been restored. According to the investigator, the applicant could now familiarise himself with those volumes of the case file. 28. On 23 April 2009 the Supreme Court of the Russian Federation examined and dismissed the applicant’s appeal against the detention order of 12 February 2009. Neither the applicant nor his counsel were present at the hearing, whereas the prosecutor was present and requested that the appeal be dismissed. 29. On 8 May 2009 the Supreme Court extended the applicant’s detention until 17 August 2009, bringing its total duration to thirty-two months and twenty-four days. That detention order referred to Article 109 of the CCrP and was worded in the same terms as the detention order of 20 May 2008. 30. On 14 May 2009 the applicant appealed against the detention order of 8 May 2009 to the Supreme Court of the Russian Federation. He submitted, in particular, that he had finished familiarising himself with the materials of the criminal case in April 2009, including with the copies of the lost volumes. He considered that the extension of his detention was not based on sufficient grounds, since his state of health would not allow him to influence witnesses or abscond. He also requested the appeal court to examine his appeal in his presence or by video link. 31. According to the Government, on 16 July 2009 notification of the date and the time of the hearing on the applicant’s appeal against the decision of 8 May 2009 was sent to the applicant and his counsel. The Government submitted that the applicant had received that notification on 20 July 2009. 32. On 3 August 2009 the criminal case against the applicant and his co-defendants was referred to the Supreme Court for trial. 33. On 5 August 2009 the Supreme Court set the preliminary hearing of the case for 13 August 2009. However, two of the applicant’s co-defendants (M. and T.), who were under a written undertaking, did not appear on that date. 34. On 11 August 2009 the Supreme Court of the Russian Federation examined the applicant’s appeal against the detention order of 8 May 2009. It dismissed the applicant’s request for leave to appear at the hearing, finding that the criminal case against the applicant and his co-accused had not yet arrived at the court for trial and had not yet been examined, that the applicant had sent his written submissions to the court, and that the prosecutor was not taking part in the examination of his appeal. As to the merits of the applicant’s appeal, the Supreme Court held that the detention order of 8 May 2009 was lawful and duly reasoned. The applicant’s counsel was not present at the appeal hearing. 35. At the preliminary hearing of 14 August 2009 the trial court held that the crimes of which the absconded co-defendants were accused were closely linked to crimes allegedly committed by other co-defendants, and that it would therefore be impossible to examine the charges against them separately. The court accordingly decided to put the missing co-defendants on the warrant list and suspended criminal proceedings against all defendants until the missing co-defendants were captured. Regarding the other co-defendants, including the applicant, the court held as follows: “... [the other co-defendants] are charged with serious and particularly serious offences. The grounds on which they had been placed in detention ... still remained valid. The defendants’ and their counsel’s arguments about their permanent place of residence and job, family situation, and serious health problems, cannot be regarded as grounds for changing the measure of restraint. In such circumstances, the preventive measure applied to them in the form of detention should not be changed until the preliminary hearing of the case. However, taking into account the requirements of Article 255 § 2 [of the CCrP], they should not stay in detention more than six months after the criminal case has come to court ... ... the measure of restraint [applied to other co-defendants, including the applicant] should be detention on remand, for a period which should not go beyond 3 February 2010 ...” At the hearing of 14 August 2009 the applicant was represented by legal counsel. 36. On 20 August 2009 the applicant appealed against the decision of 14 August 2009 to the Supreme Court of the Russian Federation. He complained that the extension of his detention had been unlawful and excessively severe, since he had been in detention for almost three years and his health was deteriorating. 37. On 17 November 2009 the Supreme Court of the Russian Federation upheld the detention order of 14 August 2009 having found that the applicant’s detention had been extended in compliance with Article 255 § 2 of the CCrP and that it was based on sufficient reasons. 38. By a decision of 24 November 2009 the trial court decided to resume the proceedings, and set the preliminary hearing of the case for 14 December 2009. By the same decision the trial court held that the measure of restraint applied to the applicant and some of his co-defendants should remain unchanged. 39. The case was adjourned on 14 December and 18 January 2010 because two co-defendants were sick. 40. On 29 January 2010, after holding a preliminary hearing, the trial court set the examination of the case for 10 February 2010. By the same decision the trial court severed the proceedings against co-defendant T., who was still at large, into separate proceedings and extended the applicant’s and his co-defendants’ detention until 3 May 2010. The trial court held as follows: “On 3 August 2009 the criminal case arrived to the Supreme Court of the Republic of Bashkortostan ... ... They [the co-defendants, including the applicant] are charged with serious and particularly serious offences relating to drug trafficking as members of an organised criminal group. At present the grounds on which their detention was ordered, namely the risk that they would interfere with the proceedings, abscond or continue criminal activities, remain unchanged, and they have not provided any guarantees of their appearance in court. In such circumstances, the measure of restraint applied to them should remain unchanged. Since the six-month time-limit running from the date of arrival of the case to the trial court expires on 3 February 2010, and in accordance with Article 255 § 3 of the CCrP, the defendants’ detention should be extended for three months ...”. 41. On 28 April 2010 the trial court ordered the applicant’s release under a written undertaking. 42. On 20 April 2011 the Supreme Court found the applicant guilty of attempted drug trafficking and acquitted him of the remaining charges. The applicant was sentenced to nine years’ imprisonment. It appears that appeal proceedings are pending. 43. From 25 November 2006 and until his release on 28 April 2010 under a written undertaking the applicant was detained in Ufa IZ-3/1 remand prison. 44. On his admission to the remand prison the applicant was examined by the prison doctor and given a chest fluorography examination, which revealed no signs of tuberculosis. 45. According to the information provided by the Government and not disputed by the applicant, between June 2007 and July 2008 the applicant was given three more fluorography tests, which revealed no pathology in his lungs. 46. On 17 February 2009 a new fluorography test detected changes indicating tuberculosis in the applicant’s lungs. On 18 February 2009 the applicant was examined by a doctor who diagnosed him with infiltrative tuberculosis of the right lung. The applicant was placed in the tuberculosis ward of the remand centre and was prescribed anti-tuberculosis treatment. 47. A fluorography test carried out on 28 January 2010 detected improvement in the applicant’s condition. 48. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112). 49. When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99). 50. Detention may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by more than two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 51. After arrest the suspect is placed in detention “pending investigation”. Detention “pending investigation” must not exceed two months (Article 109 § 1). 52. A judge may extend the detention up to six months. Further extensions to up to twelve months may be granted by a judge only in relation to those accused of serious or particularly serious criminal offences, provided that the criminal case is particularly complex and there are grounds justifying detention (Article 109 § 2). 53. An extension of detention beyond twelve months and up to eighteen months may be authorised by a court only in exceptional circumstances in respect of those accused of particularly serious offences, upon an investigator’s request approved by the Prosecutor General or his Deputy (Article 109 § 3). 54. Extension of detention beyond eighteen months is prohibited, and the detainee must be immediately released, unless the prosecution’s request for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the CCrP (Article 109 § 4). 55. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days preceding the expiry of the maximum period of detention indicated in paragraphs 2 and 3 of Article 109 (Article 109 § 5). 56. If access was granted at a later date, the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6). 57. If access was granted thirty days before the expiry of the maximum period of detention but the thirty-day period proved to be insufficient to read the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period. If several defendants are involved in the proceedings and the thirty-day period is insufficient for at least one of them to read the entire case file, the investigator may request the court to extend the period of detention in respect of those defendants who have completed reading the case file, provided that the need to apply a custodial measure to them persists and there are no grounds for choosing another preventive measure (Article 109 § 7). 58. Within five days of receipt of the request for an extension the judge must decide whether to grant it or reject it and release the detainee. If the extension is granted, the period of detention is extended until such time as would be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8). 59. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during trial”). The period of detention “during trial” is calculated from the date on which the court receives the criminal case and to the date on which the judgment is adopted. Detention “during trial” may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3). 60. An appeal against a judicial decision ordering or extending detention may be lodged with a higher court within three days. The appeal court must decide on the appeal within three days of its receipt (Article 108 § 11). 61. If a convict wishes to attend an appeal hearing, he should indicate that wish in his statement of appeal (Article 375 § 2). 62. Upon receipt of the criminal case and the statement of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and venue of the hearing no later than fourteen days before the scheduled hearing. The court shall decide whether the detainee should be summoned to the hearing. A detainee held in custody who expresses a wish to be present at the examination of the appeal shall be entitled to participate either directly in the court session or to state his case by video link. The court shall make a decision with respect to the form of participation of the detainee in the court hearing. If individuals who have been given timely notice of the venue and time of the appeal hearing fail to appear, this shall not preclude examination of the case (Article 376). 63. By its decision no. 184-O of 6 June 2003 the Constitutional Court of the Russian Federation (“the Constitutional Court”) declined to examine a complaint by Mr Yest., in which he challenged compliance with the Constitution of Article 109 § 8 of the Code of Criminal Procedure, in so far as it allowed the extension of detention pending investigation beyond the maximum time-limit and indefinitely while the defendant finished reading the material in the case file. The Constitutional Court held that such an extension was only possible if there still existed “sufficient grounds to believe” that the accused might abscond during the investigation or trial, reoffend or otherwise obstruct the establishment of the truth, as provided by Article 97 of the Code of Criminal Procedure. In so far as the challenged provision did not set a specific time-limit for holding the defendant in custody while he studied the case file, the Constitutional Court considered that it allowed for the possibility of determining such a time-limit for each particular case, depending on its specific features, on condition that the grounds for detention established in Article 97 had been sufficiently confirmed. The court concluded that the challenged provision could not be interpreted as providing for superfluous or unlimited detention. Neither did it deprive the defendant and his counsel of the right to challenge before a higher court the lawfulness and validity of the extension order, as well as the right to make an application for the custodial measure to be overturned or altered. 64. In its ruling no. 245-O-O of 20 March 2008, the Constitutional Court noted that it had reiterated on several occasions (rulings nos. 14-П, 4-П, 417-O and 330-O of 13 June 1996, 22 March 2005, 4 December 2003 and 12 July 2005 respectively) that a court, when taking a decision under Articles 100, 108, 109 and 255 of the CCrP on the placement of an individual in detention or on the extension of a period of an individual’s detention, was under obligation, inter alia, to calculate and specify a time-limit for such detention. 65. By its decision no. 271-O-O of 19 March 2009, the Constitutional Court declined to examine a complaint by Mr R. With reference to its previous decisions of 13 June 1996, 25 December 1998 and 6 June 2003, the Constitutional Court held that even though Article 109 § 8 did not define the maximum period within which an extension could be granted for the purpose of studying the case file, it did not imply the possibility of excessive or unlimited detention because, in granting an extension, the court should not rely solely on a well-founded suspicion that the defendant had committed the offence, but should mainly base its decision on specific circumstances justifying the continued detention, such as his potential to exert pressure on witnesses or an established risk of his absconding or reoffending, as well as the importance of the subject matter of the proceedings, the complexity of the case, the conduct of the defendant and other relevant factors. 66. In its decision no. 22 of 29 October 2009 “On the Practice of Application by the Courts of Preventive Measures in the Form of Remand in Custody, Bail and House Arrest” the Plenum of the Supreme Court of the Russian Federation held as follows: “18. ... Pursuant to Article 109 § 7 of the CCrP [Code of Criminal Procedure], following a request by an investigator the court may extend an accused’s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [trial] court, if upon completion of the pre-trial investigation the accused has been given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in Article 109 §§ 2 and 3 [six, twelve or eighteen months]. In that case the relevant extension order should indicate the exact period for which the extension is made ... 20. After a court accepts for examination a criminal case in which the defendant is remanded in custody, it should verify whether the time-limit set by a court order for that detention has expired ... The court decision to maintain the applicant in detention [taken after arrival of the criminal case to the court for examination on the merits] should have an indication of the end-date of the defendant’s detention”. 67. On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the refusal to permit a detainee to attend appeal hearings on the issue of detention. It held: “Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody ... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms ...” 68. By its decision no. 432-O of 24 November 2005 the Constitutional Court declined to examine a complaint by Mr G. With reference to its previous decisions of 10 December 2002 and 25 March 2004, the Constitutional Court held that convicts, but also others, including suspects in criminal proceedings and those charged with criminal offences and remanded in custody, had to be given the right to bring to the knowledge of the appeal court their position in respect of issues which would be examined by that court either by way of personal participation in the hearing or by other means. This position was later confirmed in its decision no. 538-O of 16 November 2006.