CASE OF BOYKO v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)
Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova
5. The applicant was born in 1959 and lives in Moscow. 6. The facts of the cases, as submitted by the parties, may be summarised as follows. 7. On 24 November 2006 the applicant, the owner and CEO of a large dairy producer, was charged with large-scale fraud and money laundering and summoned for questioning. He did not show up for a few initial interviews and the investigator put his name on the list of fugitives from justice. 8. On 26 January 2007 the investigator, acting on the information that the applicant had fled abroad, asked the Ostankinskiy District Court in Moscow for a detention order. 9. The detention hearing was fixed for 1 February 2007. The applicant’s lawyers had been notified of the date and time of the hearing on the previous day but did not show up and asked the investigator to postpone the examination of his application because they were busy in other proceedings. The District Court appointed legal-aid counsel to represent the absent applicant, proceeded with the hearing and issued the detention order, referring to the fact of the applicant’s absconding to Ukraine and from there to Hungary, the gravity of the charges against him and the risk of interference with the investigation. On 9 February 2007 the applicant’s lawyers appealed. 10. On 15 February 2007 the applicant was arrested in Moscow. 11. On 19 March 2007 the Moscow City Court heard an appeal against the detention order. The applicant and his lawyers were present at the hearing. Considering that the risks of flight and obstruction of the investigation were sufficiently established, the City Court upheld the detention order. 12. The applicant’s detention was later extended on nine occasions. The applicant appealed against each of the detention orders, lodging statements of appeal within two to ten days of the hearing date. It took the appeal courts between twenty-six and sixty days to examine the complaints. 13. The most recent detention order of 25 July 2008 was quashed on appeal by the Supreme Court on 2 October 2008. The Supreme Court considered that there was no evidence substantiating the risk of absconding or interfering with justice. The investigation had been pending for over two years of which the applicant had spent more than a year and a half in custody. The Supreme Court concluded that that the proceedings had been unreasonably long and ordered the applicant’s release on bail. 14. While in custody, the applicant asked the investigator to be allowed to receive visits from his mother, wife and children and also pastoral visits from two Orthodox priests, A. and S. 15. With the investigator’s consent, the applicant’s mother and daughters visited him on two occasions in April and May 2007. In August and September 2007 the investigator interviewed his wife and mother as potential witnesses but they refused to testify, invoking the constitutional guarantee against self-incrimination. The investigator refused the applicant’s subsequent applications to see his family, stating that such visits could “have a negative influence on the conduct of the investigation”. As to the Orthodox priests, on 29 March 2007 the investigator invoked the same ground to refuse a visit from S. On 30 August 2007 the investigator once again refused a pastoral visit, stating that the applicant should see the prison chaplain instead. 16. Counsel for the applicant applied for a judicial review of visiting restrictions. 17. On 24 October 2007 and 6 February 2008 the Tverskoy District Court pronounced the refusal of pastoral visits to be lawful and justified, holding that the investigator had full discretion to determine whether or not such visits ran counter to the interests of the investigation. On 18 June 2008 the City Court upheld the latter decision on appeal, holding that a restriction on religious rights was an inherent consequence of the pre-trial detention. 18. As regards family visits, on 30 October 2007 the Tverskoy District Court granted the applicant’s complaint in part, finding as follows: (a) restrictions on visits from the applicant’s wife and mother in the period after the investigator had interviewed them as witnesses in the criminal proceedings had been lawful and within the discretion of the investigator; (b) restrictions on visits from the wife and mother in the preceding period had not been justified but no relief could be afforded to the applicant because they had already been granted the status of witnesses and the investigator might wish to interview them again at some point in time; (c) restrictions on visits from the applicant’s children were not justified and the investigator had an obligation to remedy a breach of the applicant’s rights. 19. On 10 December 2007 the applicant’s representative before the Court, Ms Kostromina, asked the director of the remand prison to allow her to see the applicant and provided credentials confirming her status. Her application was referred to the investigator. 20. On 24 January 2008 Ms Kostromina lodged a complaint with the Preobrazhenskiy District Court claiming that the prison director should have authorised her visit without any restrictions, on the basis of Article 34 of the Convention guaranteeing unhindered access of an applicant to his representative. 21. On 15 February 2008 the District Court dismissed the complaint, finding that Ms Kostromina was not the applicant’s counsel in the domestic criminal proceedings and could not therefore visit him. On 6 May 2008 the Moscow City Court upheld that decision on appeal.