CASE OF KORSHUNOV v. RUSSIA
Violation of Art. 5-3;Violation of Art. 5-5;Violation of Art. 6-1;Remainder inadmissible
Christos Rozakis
5. The applicant was born in 1971 and lives in St Petersburg. 6. On 7 August 2000 a criminal case was opened into smuggling of consumer goods. 7. On 25 June 2002 the Investigations Department of the Federal Security Service (“FSB”) declared the applicant to be a suspect in the criminal case. His whereabouts, however, could not be established. On 12 July 2002 the applicant's name was put on the list of fugitives from justice. 8. On 23 November 2003 the applicant was arrested by the Chinese police in Guangzhou, China, where he lived with his family. 9. On 26 November 2003 the applicant was extradited to Russia where he was taken into custody by the FSB. He was charged with several counts of aggravated smuggling. 10. From April to November 2005 the applicant was granted access to the materials in the case file. 11. On 29 November 2005 the case was referred for trial before the Avtozavodskiy District Court of Nizhniy Novgorod. According to the Government, the case materials comprised 113 binders; charges had been brought against five individuals who had acted in conspiracy; the witnesses' list included seventy-six prosecution witnesses from several cities in Russia, Belarus, Ukraine, China and Italy, as well as twenty-five witnesses and experts for the defence. 12. On 16 December 2005 the Avtozavodskiy District Court held the preliminary hearing and fixed the opening trial date for 28 December 2005. 13. On 23 March 2006 the Avtozavodskiy District Court ordered that the case be returned to the Prosecutor General's Office for correcting defects in the indictment against the applicant. That decision was set aside by the Nizhniy Novgorod Regional Court on 2 May 2006, which referred the case back to the District Court. 14. On 29 May 2006 the trial resumed but it was subsequently stayed from 23 June to 24 July 2006. 15. On 31 January 2007 the applicant was released on bail. 16. According to the information provided by the parties and the elements available in the case-file to date, the criminal proceedings are still pending before the trial court. 17. On 26 November 2003 the Lefortovskiy District Court of Moscow ordered the applicant's detention on the grounds that he was charged with a particularly serious offence and could abscond, or interfere with, the investigation. On 10 December 2003 the Moscow City Court upheld the detention order, following an appeal by the applicant's counsel. 18. On 23 January, 5 April and 4 August 2004 the Lefortovskiy District Court extended the applicant's detention. Each time the District Court referred to the gravity of the charge against the applicant and to unspecified grounds to believe that he would abscond. 19. Further extensions were granted by the Moscow City Court on 24 November 2004, 25 March and 5 May 2005. By way of justification, the City Court invoked the gravity of the charges against the applicant and noted that the applicant had been in hiding from 2002 to 2004 [sic] and that two other co-defendants had also absconded. The extension order of 5 May 2005 specified that the applicant should remain in custody “until the defendants and their counsel had finished studying the case file, the prosecutor had referred the case for trial and the trial court had decided on the measure of restraint”. 20. The applicant's appeals against the extension orders were rejected. 21. On 29 November 2005 the applicant was moved to remand centre no. IZ-52/1 in Nizhniy Novgorod. 22. On 16 December 2005 the Avtozavodskiy District Court extended the applicant's detention, referring to the gravity of the charges against the applicant, his history of absconding, and the risk that he would “otherwise” interfere with the course of the trial because two other defendants had gone into hiding. On 24 January 2006 the Nizhniy Novgorod Regional Court upheld that decision on appeal. 23. On 1 June 2006 the Avtozavodskiy District Court, by a single decision, ordered to extend the applicant's and his co-defendant's detention until 2 September 2006, holding as follows: “In deciding on extending the period of detention, the court takes into account that the measure of restraint in respect of [the applicant and his co-defendant] was imposed in accordance with Articles 97 to 101 and 108 of the Code of Criminal Procedure as there existed sufficient grounds to believe that they would abscond investigation and trial or interfere with the criminal proceedings. The grounds justifying the application of the measure of restraint still obtain to date. Positive references of the defendants and their medical ailments do not remove the grounds to believe that they can abscond because they are charged with particularly serious offences”. 24. Counsel for the applicant filed an appeal. He submitted, in particular, that the first-instance court had failed to take into account the facts mitigating for the applicant's release, such as the absence of a prior criminal record, positive references, a need to provide for his minor son, his chronic ailments, and the long period of detention which had already exceeded thirty months. 25. On 26 June 2006 the Nizhniy Novgorod Regional Court upheld on appeal the extension order of 1 June 2006, noting that the initial grounds justifying the holding of the applicant and his co-defendant in custody still obtained and that the defence had not put forward any arguments warranting a change in the preventive measure. 26. On 21 August and 16 November 2006 the Avtozavodskiy District Court granted further extensions of the applicant's and his co-defendant's detention, invoking two grounds: that they were charged with particularly serious offences punishable with up to twelve years' imprisonment, and that the applicant had once absconded, whereas the investigation had established that his co-defendant had planned to abscond. 27. In the decision of 21 August 2006 the District Court found that: “...if the preventive measure is replaced with a more lenient one, there exists a risk that the defendants would not appear at trial; thus, only the custodial measure may... ensure the protection of the interests of the State and society against crime and the possibility of a fair trial.” 28. The decision of 16 November 2006 employed a somewhat different wording which read as follows: “Another, more lenient preventive measure, such as bail, would not be able to ensure a fair trial in this particular case. For that reason the need to ensure an effective protection of the public interests – notwithstanding the presumption of innocence and long periods of detention of both defendants – justifies a departure from the principle of individual liberty.” 29. On 11 September and 15 December 2006 the Nizhniy Novgorod Regional Court upheld, in a summary fashion, the above decisions. 30. On 30 January 2007 the Avtozavodskiy District Court granted the applicant's and his co-defendant's application for release on bail. It found that, although the risk of absconding still existed, with the passage of time that risk was no longer sufficient to justify a breach of the principle of individual liberty. The bail was set at 1,500,000 Russian roubles (approximately 44,000 euros). On the following day the applicant was released. 31. Since 1 July 2002 detention matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001). 32. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112). 33. When deciding on a preventive measure, the court is required to consider whether there are “sufficient grounds to believe” that the accused would abscond during the investigation or trial, re-offend or interfere with 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). 34. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 35. After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the investigation” is two months but it can be extended for up to six months. Further extensions for up to twelve or eighteen months may be authorised only if the accused is charged with serious or particularly serious criminal offences (Article 109 §§ 1-3). 36. From the date the prosecutor forwards the case to the trial court, the defendant's detention is “during the trial”. The term of detention “during the trial” is calculated to the date the judgment is given. It 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). 37. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of, in particular, unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1070 § 1 of the Civil Code). 38. A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151 of the Civil Code). Non-pecuniary damage must be compensated for irrespective of the tortfeasor's fault in the event of, in particular, unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody (Article 1100 § 2).