CASE OF ZIMIN v. RUSSIA
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)
Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1972 and lives in Ulyanovsk. 6. On 23 December 2002 the Commercial Court of the Ulyanovsk Region declared V.T., a closed joint stock company (the “Company”), insolvent and appointed the applicant as its liquidator. 7. On 29 June 2005 the Ulyanovsk Regional Department of the Interior opened an investigation into the Company’s insolvency proceedings. On 29 August 2005 the applicant was removed from office. According to the applicant, in the course of the investigation he was repeatedly questioned as a witness. 8. On 29 March 2006 the investigator from the Regional Department of the Interior issued an indictment against the applicant on the charges of fraudulent trading during the Company’s insolvency proceedings and embezzlement. In particular, the applicant was accused of having unlawfully transferred the Company’s real property to a third party. 9. According to the materials in the applicant’s criminal case file, he was duly asked to appear at the investigator’s office to be served with the indictment. The investigator sent the telegram to the applicant’s known address. When the postman tried to deliver the telegram the persons present in the applicant’s flat did not open the door. They claimed that the applicant was not there. They also refused to sign for the delivery of the telegram. The investigator’s subsequent summons remained unanswered by the applicant. He was not found at his place of residence either. The police questioned the applicant’s wife and other relatives, who appeared to be unaware of the applicant’s whereabouts. On 5 April 2006 the applicant’s name was put on the list of wanted persons. 10. On 29 April 2006 the applicant was arrested in Moscow and then transferred to Ulyanovsk. The investigator asked the court to authorise the applicant’s pre-trial detention given that (1) he had absconded, (2) he was charged with a serious offence (embezzlement) and, if found guilty, might be subjected to a custodial sentence exceeding two years, and (3) if released, he might abscond or interfere with the administration of justice. 11. On 30 April 2006 the Leninskiy District Court of Ulyanovsk granted the investigator’s request. In particular, the court noted as follows: “[The applicant] has provided positive references as to his character and has two minor children. However, in the light of the severity of the charges and the fact that he might abscond, [the court] does not consider it possible to apply any restrictive measure other than custody.” 12. The applicant appealed, alleging, inter alia, that the District Court could have applied a less strict preventive measure and that the investigator failed to substantiate his argument that the applicant might abscond. On 11 May 2006 the Ulyanovsk Regional Court upheld the detention order of 30 April 2006 on appeal. 13. On 19 June 2006 the investigator refused to extend the time-limit established for the applicant to be able to study the case file. On 11 July 2006 the First Deputy Prosecutor of the Ulyanovsk Region quashed the investigator’s decision. 14. In the meantime, on 23 June 2006 the District Court extended the applicant’s detention until 29 July 2006, stating as follows: “In view of the severity of the charges and [the applicant’s] character, the court considers that he might abscond if released. The grounds justifying [the applicant’s] detention ... have not ceased to exist. There are no new circumstances that would allow any less restrictive measure to be applied.” 15. The applicant appealed, alleging that the District Court could have considered the application of a less strict preventive measure. On 6 July 2006 the Regional Court upheld the detention order of 23 June 2006 on appeal. 16. On 19 July 2006 the District Court further extended the applicant’s detention until 29 August 2006. The applicant asked to be released, arguing that he had no prior convictions, that he had a permanent place of residence, that he was married with two minor children and that he would not abscond. The court dismissed the applicant’s request, noting as follows: “[The applicant] is charged, [inter alia] with a serious offence and, if found guilty, is liable to a custodial sentence exceeding two years. In the light of the above, and taking into consideration the fact that [the applicant] had earlier been put on the list of wanted persons, [the court] pays special attention to the prosecution’s argument that [the applicant] might abscond, if released... In the light of the above, the court cannot release [the applicant] and considers it necessary to extend his detention.” 17. On 16 August 2006 the Zavolzhskiy District Court of Ulyanovsk scheduled the first hearing of the case for 24 August 2006. The court refused to release the applicant pending trial, noting as follows: “[The applicant] is charged with a number of offences, one of which is considered a serious one. This fact is sufficient to assume that [he] might abscond. There are no other circumstances... that would allow custody to be replaced by another less restrictive measure”. 18. On an unspecified date the prosecution dropped the charge of embezzlement against the applicant. 19. On 29 December 2006 the Zavolzhskiy District Court found the applicant guilty of fraudulent trading and sentenced him to one year and one month’s imprisonment and a fine of 50,000 Russian roubles discharging him from serving the prison sentence. The applicant was released from custody in the courtroom. 20. On 21 February 2007 the Ulyanovsk Regional Court upheld the judgment of 29 December 2006 on appeal. 21. “Preventive measures” or “restrictive measures” can be imposed on a defendant in order to assure the execution of the sentence, if it is subsequently imposed, or for the extradition purposes (Article 97 § 2 of the Russian Code of Criminal Procedure (the “CCrP”)). 22. “Preventive measures” or “restrictive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 98 of the CCrP). 23. The court may remand the defendant in custody provided there are grounds to believe that he might abscond, continue criminal activities, threaten a witness or other parties to the criminal proceedings, destroy evidence or otherwise interfere with administration of justice (Article 97 § 1 of the CCrP). 24. When deciding whether to remand an accused in custody, the competent authority is required to take into account the seriousness of the charge, information on the defendant’s character, his or her profession, age, state of health, family status and other circumstances (Article 99 of the CCrP). 25. The defendant may be remanded in custody if the charge carries a sentence of at least two years’ imprisonment and it is not possible to apply a less severe preventive measure (Article 108 § 1 of the CCrP).