CASE OF FEDORENKO v. RUSSIA
Remainder inadmissible;Violation of Art. 5-1-c;Violation of Art. 5-3;Violation of Art. 6-2;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
6. The applicant was born in 1976 and lives in St Petersburg. 7. On 18 January 2005 criminal proceedings were opened in connection with an offence of fraud committed by unidentified persons with a view to acquiring a flat in Moscow by way of selling it on behalf of its deceased owner, an offence punishable under Article 159 § 3 of the Russian Criminal Code. 8. On 27 April 2005 the applicant was detained on suspicion of having committed that fraud and questioned as a suspect. He denied his involvement in the offence. 9. On the same date the investigating authorities filed a request with the Golovinskiy District Court of Moscow (“the District Court”) to authorise the applicant’s detention on remand. 10. On 28 April 2005 the District Court, composed of judge B., granted the investigator’s request and, with reference to Articles 100 and 108 of the Russian Code of Criminal Procedure, ordered the applicant’s pre-trial detention, stating that he “had committed a serious criminal offence punishable under the criminal law with a term of imprisonment of more than two years” and that the investigating authority had grounds to believe that he might abscond and obstruct the investigation, if at liberty. No time-limit for the detention was indicated in the decision. 11. On 3 May 2005 the applicant’s two lawyers lodged an appeal on his behalf against the decision of 28 April 2005 requesting the applicant’s immediate release. They also complained of a violation of the presumption of innocence on account of the District Court’s statement that the applicant “[had] committed a serious criminal offence”. 12. According to the Government, the appeal of 3 May 2005 was received by the District Court on the same date and then sent to the Moscow City Court for further processing. The latter court scheduled a hearing for 17 May 2005. On 16 May 2005 the Moscow City Court received the applicant’s request in which he expressed his wish to participate in person in the examination of his appeal. In the Government’s submission, the Moscow City Court had then to postpone the hearing until 25 May 2005 to be able to comply with the applicant’s request. 13. On 25 May 2005 the Moscow City Court dismissed the applicant’s appeal and upheld the decision of 28 April 2005. It noted that, when authorising the applicant’s detention on remand, the District Court had taken into account the fact that the applicant was suspected of having committed a serious criminal offence and had reasonably concluded that the applicant might continue his criminal activity, if at large. The Moscow City Court rejected the argument of the applicant’s legal counsel that the District Court had found the applicant guilty when stating in its decision of 28 April 2005 that he “[had] committed a serious offence”. In this respect the appellate court noted that it was clear that this had been a “technical error”. 14. On 4 May 2005 the applicant was formally charged with fraud punishable under Article 159 § 3 of the Russian Criminal Code. 15. On 23 June 2005 the District Court, at the investigator’s request, extended the applicant’s pre-trial detention until 18 July 2005. It referred to the fact that the applicant had been charged with a serious offence and stated that, if at liberty, the applicant might flee from justice and obstruct the establishment of the truth. 16. On 14 July 2005 the District Court, at the investigator’s request, further extended the applicant’s pre-trial detention until 18 September 2005 on the grounds that the investigation had not been completed and that a number of investigative actions were still to be carried out. The court rejected a request by the applicant’s lawyers, who referred to the fact that the applicant had no previous criminal record and that he had psoriasis, to release the applicant on bail, which the applicant’s father undertook to pay, or subject to an undertaking not to leave his place of residence. It stated that there were no grounds for revoking or altering the applicant’s preventive measure, given that he had been charged with a serious ’s personality, there were reasons to believe that he might abscond, continue his criminal activity, threaten witnesses and obstruct the investigation. The applicant’s appeal against this decision was dismissed by the Moscow City Court on an unspecified date. 17. On 15 September 2005 the District Court extended the applicant’s pre-trial detention until 27 October 2005. It stated, in particular, that the investigating authorities needed more time to complete the investigation, that the applicant had been accused of a serious criminal offence and that the nature of the charges against him and the fact that the other co-accused were suspected of having committed another serious crime made the court believe that, if released, the applicant might continue his criminal activity, abscond and obstruct the establishment of the truth. 18. On 24 October 2005 the District Court ordered that the applicant should remain in detention until 18 November 2005. The court referred to the same reasons and also to the complex nature of the criminal case against the applicant. 19. On 14 November 2005 the District Court further extended the applicant’s detention until 18 January 2006 referring to the same reasons. The Moscow City Court upheld this extension on appeal on 14 December 2005. 20. On 12 January 2006 the District Court extended the applicant’s pre-trial detention until 18 March 2006. In its decision the court relied on the seriousness of the criminal offence imputed to the applicant which was punishable under the criminal law by a term of imprisonment ranging between five and ten years. This decision was upheld on appeal by the Moscow City Court on 27 February 2006. 21. On 17 March 2006 the District Court ordered that the applicant should remain in detention until 27 April 2006. It does not appear that the court gave any reasons other than those to which it had referred earlier. 22. On 17 April 2006 the applicant’s case file was remitted to the District Court for examination on the merits. 23. By a decision of 26 April 2006 the District Court scheduled a hearing in the case and ordered that the applicant should remain in custody. No time-limit for this detention was indicated. The applicant’s request for release was rejected on the ground that the initial decision ordering the applicant’s detention had been taken in accordance with the requirements of Articles 97, 99 and 108 of the Russian Code of Criminal Procedure and that, at present, the court found no reason to revoke or change the applicant’s preventive measure, given, in particular, the necessity to ensure the proper conduct of the criminal proceedings. The applicant’s appeal against this decision was dismissed by the Moscow City Court on 24 May 2006. 24. On 22 September 2006 the District Court extended the applicant’s detention pending trial until 17 January 2007. It appears that the District Court gave similar reasons for its decision. On 30 October 2006 the Moscow City Court upheld this decision on appeal. 25. On 25 December 2006 the Presidium of the Moscow City Court quashed the court decisions of 26 April and 24 May 2006 in supervisory review proceedings because of a procedural shortcoming concerning the applicant’s co-defendant and remitted the case for fresh consideration. It also ordered that the applicant’s preventive measure should remain unchanged. 26. On 11 January 2007 the District Court further extended the applicant’s detention pending trial until 17 April 2007, with reference to the absence of any grounds for revoking or altering the applicant’s preventive measure in view of the seriousness of the charges against him, his personality and “the circumstances which the court had taken into account when ordering the applicant’s placement in detention, and which remained unchanged at present”. In the Government’s submission, on 19 February 2007 the Moscow City Court upheld this decision on appeal. 27. In a judgment of 16 April 2007 the District Court convicted the applicant as charged and sentenced him to four years and six months’ imprisonment. 28. On 23 July 2007 the Moscow City Court upheld the applicant’s conviction on appeal, having reduced his sentence to four years and three months’ imprisonment. 29. Since 1 July 2002, criminal-law matters have been governed by the Russian Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001, “the Code”). 30. “Preventive measures” include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). 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). In exceptional circumstances, and when there exist grounds provided for by Article 97, a preventive measure may be applied to a suspect, taking into account the circumstances listed in Article 99 (Article 100). If necessary, the suspect or accused may be asked to give an undertaking to appear (Article 112). 31. The Code makes a distinction between two types of remand in custody: the first being “pending investigation”, that is, while a competent agency – the police or a prosecutor’s office – is investigating the case, and the second being “before the court” (or “pending trial”), at the judicial stage. 32. A custodial measure may only be ordered by a judicial decision in respect of a person who is suspected of, or charged with, a criminal offence punishable by more than two years’ imprisonment (Article 108). The time-limit for detention pending investigation is fixed at two months (Article 109). A judge may extend that period up to six months (Article 109 § 2). Further extensions may only be granted by a judge if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). No extension beyond eighteen months is permissible and the detainee must be released immediately (Article 109 § 4). 33. From the time the prosecutor sends the case to the trial court, the defendant’s detention is “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which 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). 34. If a convict wishes to participate in an appeal hearing, he or she should indicate that wish in the statement of appeal (Article 375 § 2). 35. Upon receipt of the criminal case and the statements of appeal, the judge fixes the date, time and place for a hearing. The parties shall be notified of the date, time and place of the hearing no later than fourteen days before the scheduled hearing (Article 376 §§ 1 and 2). 36. In its resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Russian Supreme Court noted with regard to the provisions of Article 255 § 3 of the Code, that, when deciding on an extension of a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its time-limit (paragraph 16). 37. In its ruling no. 245-O-O of 20 March 2008, the Russian Constitutional Court noted that it had reiterated on several occasions (rulings nos. 14-P, 4-P, 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 Russian Code of Criminal Procedure on the placement of an individual into 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.