CASE OF BELOZOROV v. RUSSIA AND UKRAINE
Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person;Article 5-1-f - Extradition) (Ukraine);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention) (Russia);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review by a court;Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Stanislav Shevchuk
6. The applicant was born in 1967 and lives in the town of Feodosiya, the Autonomous Republic of Crimea. 7. On 19 September 2000 the Prosecutor’s office of the NorthWestern Administrative District of the city of Moscow (“the Prosecutor’s office”) opened a criminal investigation into the murder of a businessman. 8. By a decision of 30 October 2000 the Prosecutor’s office ordered the applicant to appear as a witness in this case. Since at that time the applicant resided in the town of Feodosiya in the Autonomous Republic of Crimea, the prosecutor also ordered the police to take measures with a view to ensuring the applicant’s attendance. It appears that the relevant summons was sent to the applicant’s only known address in Russia, that of his sister, who resided in Moscow. The applicant denied having received the summons at that time. 9. On 1 and 2 November 2000 the Prosecutor’s office ordered the applicant’s apartment in Feodosiya to be searched, requested the cooperation of the Ukrainian authorities in conducting the search, and also dispatched a team of police officers from the Department of Criminal Investigations of the Moscow City Department of the Interior to Ukraine. In his letter dated 1 November 2000 a prosecutor from the Prosecutor’s office specifically mentioned that he had decided to send two police officers from that Department to Feodosiya for “operative follow-up”. 10. Two Russian police officers, Ti. and Go., were entrusted with this operation and at once sent to Ukraine. It appears that they had secured the support of the head of the Department of Criminal Investigation of the Feodosiya Department of the Interior, lieutenantcolonel Mir., who had apparently instructed his subordinate, police officer Kov., to assist the Russian police officers in their task. The exact mandate of police officer Kov. is unclear. 11. On 3 November 2000 police officer Kov. and the two Russian police officers, Ti. and Go., located and arrested the applicant. He was handcuffed and his apartment was searched. The search took place in the presence of the applicant’s mother, B.N., and her neighbours K.M. and P.N. acting as witnesses; it was documented in a report drawn up by Kov. on 3 November 2000. The report stated that the applicant had been given a copy of the report on the day of the search. 12. According to the applicant, after the search he remained in the custody of the Ukrainian and Russian police, who the next day escorted him to a local airport. The Russian officers and the applicant took the first flight to Moscow. On arrival, the applicant was formally arrested by the same two officers and detained on suspicion of murder. 13. The applicant submitted a copy of the passenger manifest for Aeroflot flight Su-200 dated 4 November 2000. The document showed that the applicant and police officers Go. and Ti. had travelled on the same flight and occupied seats nos. 5 (Go.), 6 (the applicant) and 7 (Ti.). 14. According to the Russian Government, after the search the applicant had been taken to the Ukrainian police and shortly thereafter had been released. The next day he had bought a ticket and took a flight to Moscow. Two police officers, Ti. and Go., had been tipped off about the applicant’s decision to buy a ticket and managed to buy tickets for the same flight. When the applicant arrived at a Moscow airport, he had been arrested by Ti. and Go. and brought before an investigator from the Prosecutor’s office. 15. The Ukrainian Government did not submit their own version of these events. 16. After the events of 3 and 4 November 2000 the applicant’s parents made a number of complaints to various Ukrainian officials and bodies about the actions of the Ukrainian policemen and requested assistance from the Ukrainian Ministry of Foreign Affairs in repatriating the applicant to Ukraine from Russia. 17. More specifically, on 25 November 2000 the applicant made a criminal complaint to the Ukrainian Prosecutor General’s office, alleging abuse of power and the unlawfulness of the search, arrest and detention. 18. In response to one of the complaints of the applicant’s parents’, on 8 December 2000 a prosecutor from the Feodosiya Prosecutor’s office initiated administrative proceedings regarding the events of 3 November 2000 against the Ukrainian officials involved. The decision stated that: “... On 3 November 2000 police officers from the Moscow department of criminal investigations arrived at the town of Feodosiya with a warrant to carry out a search at [the applicant’s home address], this decision having been authorised by [a] prosecutor from the Moscow North-Western District. The head of the criminal investigation department of the Department of the Interior ... police lieutenant-colonel Mir., seriously breached the requirements of Article 177 of the Code of Criminal Procedure of Ukraine and Article 80 of the Minsk Convention ... according to which contact concerning questions of extradition, criminal prosecution, and the execution of investigatory missions ... is to be made by the Prosecutor General’s offices of the respective parties. He directed his [subordinates] to render assistance [to the Russian police] in carrying out their search. Before the start of the search the Moscow police officers, in the presence of Ukrainian police officers Kov., Ga., and Bol., arrested [the applicant] and handcuffed him: this was confirmed by [the applicant’s parents and witnesses] K.M. and P.N. After the search, a Ukrainian national [the applicant] was apprehended by the Russian police and taken to an unknown location ...” 19. On 9 December 2000 the head of the Feodosiya Department of the Interior, lieutenant-colonel Mir., issued order no. 478, in which he reprimanded police officer Kov. who had taken part in the events of 3 November 2000, for “incorrect and unathorised actions while assisting the police of other states”. 20. On 22 December 2000 the same official from the Feodosiya Department of the Interior issued order no. 501, in which he mentioned that the initial authorisation given to police officer Kov. had only included the instruction “to locate [the applicant] and indicate that location to the police officers from Moscow”. 21. By a letter dated 30 December 2000 the Ukrainian authorities informed the applicant’s mother that police officer Kov. had been reprimanded and that the question of the disciplinary liability of lieutenantcolonel Mir. would be decided when he returned from holiday. 22. On 22 January 2001 a prosecutor from the Ukrainian Prosecutor General’s office wrote a letter to the applicant’s father and informed him that they “had requested legal assistance [from the Russian authorities] in resolving [the applicant’s complaint] about his unlawful arrest ... and his ... subsequent transfer to [Russia]”. By the same letter the applicant’s father was informed that the applicant’s complaint about unlawful actions on the part of the Ukrainian policemen had been forwarded to a prosecutor’s office for further investigation. 23. By a letter dated 23 April 2001, in response to one of the complaints from the applicant’s family, a prosecutor from the Feodosiya Prosecutor’s office informed the applicant that the Russian lawenforcement bodies had never formally asked the Ukrainian authorities to conduct a search at the applicant’s address in Ukraine. 24. By a letter dated 7 February 2002 a prosecutor from the Ukrainian Prosecutor General’s office informed the applicant’s mother that the inquiry into the events conducted by the Prosecutor’s office of the Autonomous Republic of Crimea revealed that officers from both the Russian and the Ukrainian police had been present during the search. The inquiry resulted in the decision to bring administrative proceedings in respect of the Ukrainian police officers who had breached the rules of criminal procedure and the Minsk Convention. 25. In July 2004 the applicant’s mother lodged a complaint about the events of 3 November 2000 with the Feodosiya Town Court. This complaint remained unexamined and on 19 August 2004 it was forwarded instead to the Feodosiya Town Prosecutor’s office. A covering letter signed by the President of the Feodosiya Town Court explained to the applicant’s mother that the complaint had been forwarded to the Prosecutor’s office for examination. 26. The applicant’s parents appealed against the Town Court’s failure to examine his mother’s arguments on the merits before the Appeal Court of the Autonomous Republic of Crimea on 29 November 2004. 27. On 8 December 2004 the President of the Appeal Court explained that on 6 April 2001 an investigator had already refused to bring criminal proceedings in respect of the events of 3 November 2000. 28. It is unclear whether the applicant or his family received a copy of the decision of 6 April 2001. According to a certificate submitted by the Ukrainian Government, the inquiry case file was destroyed owing to expiry of the retention period on 4 May 2006. 29. On 6 December 2000 the applicant lodged a similar complaint with the Russian Prosecutor General, stating that his arrest in Ukraine, subsequent transfer to Moscow and detention in custody by the Russian authorities had been unlawful. 30. On 22 December 2000 an investigator from the Prosecutor’s office questioned officer Ti. in connection with the circumstances of the applicant’s arrest in Ukraine. Ti. stated: “... on 1 November 2000 the prosecutor’s office of the Northern Western Administrative District issued an international request for the search of [the applicant’s apartment] and the applicant’s arrest. Whether it reached the police of Feodosiya I am not sure, but as far as I understood it [did]. In order to execute the request, [officer] Go. and I set off for Feodosiya in possession of a copy of the international request. Having arrived in Feodosiya, we contacted the Department of the Interior of Feodosiya and asked them to be present during the search and other activities within the framework of the request. On 3 November 2000 we attended the search at [the applicant’s] place of residence. The search of [the applicant’s] apartment was conducted by the [Feodosiya] police officers and they drew up a record in this respect. Go. and I were present at the search, but did not actively participate in it. After the search [the applicant] was invited by the [Feodosiya] police officers to the premises of the Department of the Interior for questioning. I was informed by one of the [Feodosiya] police officers that [the applicant] refused to answer any questions concerning the matter. No documents were given either to me or to Go. We were only given a copy of the search record. I knew that we had no right to carry out any operative search activities on the territory of Ukraine, and therefore we did not personally participate in the verbal exchanges with [the applicant]. Having refused to make any statements, [the applicant] was released. The next day, 4 November 2000, the [Feodosiya] policemen – I don’t remember who exactly – informed Go. and myself that [the applicant] had bought a ticket for a plane to Moscow and told us the flight and seat number. At once we set off for the sales office and, since very few tickets were sold, managed to buy tickets for seats close to [the applicant] so as to be able to observe him. The plane was not full, since few people were flying to Moscow. We did not show any interest or attention towards [the applicant]. I don’t know whether [the applicant] recognised us. In any event, had he had any concerns, he could have expressed them to the officers [of the law enforcement agencies in the airport]. [The applicant] did not do this, from which I deduce that he was not aware of either me or Go., nor had he recognised [us], and he expected to go into hiding in Moscow. We knew about the investigator’s decision to arrest [the applicant] because he had no place of residence in Moscow. Upon his arrival in Moscow, we decided to arrest [the applicant] and bring him [to the police station of the Northern Western Administrative District] for investigative actions ...” 31. On 22 December 2000 an investigator from the Prosecutor’s office questioned officer Go. in connection with the circumstances of the applicant’s arrest in Ukraine. Go. repeated word for word the statements given earlier by Ti. 32. By a decision of 26 December 2000 an investigator from the Prosecutor’s office rejected the applicant’s complaint on the grounds that the applicant had travelled to Moscow of his own free will and had been detained on arrival in accordance with domestic law. The prosecutor relied principally on the evidence given by the two Russian police officers, who explained that they had happened by mere chance to be on the same plane to Moscow as the applicant. They denied that they had taken an active part in the events in Ukraine and stated that the applicant had been released after the search and had then bought a plane ticket to Moscow on his own. The officers had been tipped off by an undisclosed source within the Ukrainian police and had managed to buy tickets for the same flight, “sitting not very far from the applicant’s seat”. On arrival in Moscow the officers arrested the applicant in the airport terminal and took him to the investigating authorities. 33. On 28 December 2000 an investigator from the Prosecutor’s office questioned the applicant in connection with the circumstances of his arrest in Ukraine. The applicant stated: “... I was arrested on 3 November 2000 in the town of Feodosiya, in the Krym Region. The arrest was carried out by five police officers from the Feodosiya Town Police and two other police officers, who I later learned were from Moscow. Once the policemen had identified me I was handcuffed. Thereafter they conducted a search of my home. I was shown a search warrant signed by the Prosecutor from the Northern-Western Administrative District of Moscow but no other documents were provided. After the search I was brought to the police station in Feodosiya. I was not shown any documents justifying my arrest. I was refused a phone call. After that I was transported to hotel “Sailor” in Feodosiya where the policemen from Moscow were staying and where I was handcuffed to a radiator. We spent about an hour in the hotel but after that I was taken to the police station because the hotel manager objected to the presence of three men in a room designed only for two. The rest of the night I spent in an office belonging to the police, attached by handcuffs to the radiator. The next morning the policemen from Moscow took me to the passport office of Feodosiya Police Station to collect my ID card and thereafter we went by car to the airport. At the airport I was in the car with the policemen from Feodosiya. The policemen bought a ticket in my name. Then we took flight 200 from Simferopol to Moscow. Before boarding we went through the customs and border control. As we were passing it, my handcuffs were removed and the policemen showed their licences to use special devices. Upon landing in Moscow, the policemen and I did not go through the border and customs control, but went out through [a special] exit. Thereafter I was put in a car and brought to the [police station] of the Northern-Western Administrative District of Moscow ...” 34. In decisions of 16 February and 16 April 2001, in response to further complaints by the applicant, the prosecutor reiterated his earlier findings. 35. By a judgment of 2 September 2002 the Khoroshevskiy District Court of the city of Moscow confirmed the prosecutor’s decision to dispense with criminal proceedings in respect of the allegedly unlawful arrest, search and detention. Among other things, the court referred to the Minsk Convention. 36. The Moscow City Court quashed this judgment on 31 October 2002 on the grounds that the questions of the lawfulness of the applicant’s arrest and the search of his apartment were inextricably linked to the merits of the applicant’s criminal case and could not be decided before the trial court judgment. 37. The case was remitted for fresh examination at first instance and on 27 November 2002 the Khoroshevskiy District Court of Moscow rejected the applicant’s appeal. This judgment was upheld on appeal by the Moscow City Court on 9 January 2003. 38. It appears that the applicant subsequently tried to institute court proceedings in respect of the same questions before the domestic courts. By a judgment of 18 July 2003, given in the applicant’s absence, the Khoroshevskiy District Court of Moscow rejected these arguments. The court held, in particular, that: “... as is apparent from the case file, [the applicant] was arrested by the [police officers] Go. and Ti. on 4 November 2000 at Sheremetyevo airport as ordered by the investigator in his decision of 30 October 2000 ... When questioned in this connection, Go. and Ti. stated that they did not arrest [the applicant] in Ukraine and did not take any part in the search of his apartment, but were simply in attendance. According to the search record of 5 November 2000, the search was carried out in [the applicant’s] apartment in Feodosiya by the local police and the request to carry it out had been made to the Feodosiya prosecutor by the prosecutor of the North Western Administrative District of Moscow. The order to execute the request is defined by the party to which the request is addressed. In accordance with the Criminal Procedure Code of RSFSR and the Law on Operative and Search Activities, the said norms applied only on the territory of RSFSR but they did not contain any rules preventing [investigation and operative] activities on the territory of another state. The [Minsk] Convention sets out the possibility of legal assistance and does not contain a ban on procedural actions on the territory of Contracting States, recognising the lawfulness of such actions if they are authorised by the law of the party to which the request was addressed (Article 6 of the Convention). According to part 3 of Article 8 of the Convention, the presence of officers acting for the requesting party during such actions is possible. In the view of the above, the court considers that the search was carried out fully and properly. In the present case the prosecutor’s office was only competent to assess the events which took place on the territory of Russia, as the norms of the code of criminal procedure of RSFSR only applied there, and any decision concerning events which took place on the territory on Ukraine could only be taken by the competent body in Ukraine and the corresponding investigation could only be initiated upon a request from the party to which the request was addressed, that is to say Ukraine. However, no such request was ever made, and, as is apparent from the letter from the Feodosiya prosecutor, the request to bring a criminal case in this connection had been refused ...” 39. According to the applicant, he received only a copy of the judgment on 28 July 2003 and tried to appeal against it on 30 July 2003. His request for restoration of the time-limits for appeal, submitted on 31 October 2003, was refused by the Khoroshevskiy District Court of Moscow on 19 November 2003 for the applicant’s failure to justify the filing of the appeal outside of the ten days’ statutory time-limit. The Moscow City Court upheld the decision of 19 November 2003 on 13 January 2004. 40. After the Court had communicated the case to the Russian Government on 30 November 2005, police officers Ti. and Go. wrote explanatory reports to their superiors dated 13 March 2006 concerning the events of 3 and 4 November 2000, with the following content: “... After the search had been carried out, [the applicant] went to the Police Department along with [the Ukrainian police officials] to give The next day officer Go. and I departed for Moscow by air. We were told by one of the Ukrainian police officers that [the applicant] had bought a ticket to Moscow; we managed to buy tickets for the same flight. Upon arrival in Moscow, after going through customs and border control in the airport terminal, we ... approached [the applicant and arrested him]. No physical or psychological pressure was exercised on [the applicant] ...” 41. At around 9 p.m. on 4 November 2000 an investigator from the Prosecutor’s Office in Moscow drew up a report on the applicant’s arrest, having ascertained that the applicant was wanted on suspicion of murder. The report noted that the applicant had the status of an accused in the case and confirmed that he had been notified of his rights. 42. It appears that the applicant’s detention was first authorised by a decision of 7 November 2000 taken by the District Prosecutor of the Prosecutor’s office in Moscow. The decision stated that the applicant had been detained on 4 November 2000. It further referred to the gravity of the charge against him, the risk of his fleeing or interfering with the course of the investigation, and the fact that he had no permanent residence in the Moscow region. The decision neither specified the term of the applicant’s detention nor commented on the lawfulness of his arrest in Ukraine, his transfer to Moscow and his subsequent detention in custody by the Russian authorities. 43. The detention was subsequently extended by order of the prosecutor on 7 December 2000. The order described the course of the investigation into the case and mentioned the progress achieved so far. More specifically, the investigation identified and located Sm. and Ko., two other persons allegedly directly implicated in the murder of the businessman in question. It also included a number of expert examinations, a forensic examination of the body of the businessman, two ballistic examinations and a dactylographic examination. The investigator had mentioned that he still needed to study the network of the applicant’s and Ko.’s connections and to bring new versions of charges against the applicant, as well as against Sm. and Ko. The order extended the applicant’s detention until 2 February 2001. 44. By order of 23 January 2001 the applicant’s detention was extended until 19 March 2001. It was based on the same reasoning as the detention order of 7 December 2000. 45. On 22 March 2001 the prosecution concluded the investigation and remitted the case for examination on the merits. It does not appear that there was any procedural decision authorising the applicant’s detention between 19 March and 4 April 2001. 46. On 4 April 2001 the Moscow City Court conducted a preliminary examination of the applicant’s case and, without examining the question of the lawfulness of his detention between 19 March and 4 April 2001, further remanded the applicant in custody. No time-limit was indicated. 47. Thereafter the court again extended the applicant’s detention on 24 July, 2 August, 4 September and 17 December 2001 as well as on 1 July 2002, without specifying any time-limit for his detention. All these decisions were taken with reference to the gravity of the charge against the applicant and the fact that the proceedings in the case had not been completed. 48. The applicant and his counsel were not invited to attend the hearing of 1 July 2002. 49. It does not appear that the applicant lodged any complaint about the repeated extension of his detention by the prosecutor or by the court prior to the decision of 1 July 2002. The applicant’s complaints of 1 and 22 July 2002 against that decision were rejected by the Supreme Court on 24 October 2002. 50. According to the applicant, he and his counsel were not invited to attend the hearing of 24 October 2002. However, the Government submitted that the applicant and his counsel had been informed about the hearing of 24 October on 15 October 2002. The applicant’s counsel had not given the appeal court any reasons for her failure to appear, and did not ask for the hearing to be postponed. At the same time, the applicant’s request to attend in person remained unexamined. 51. It appears that on 16 September and 16 December 2002 the trial court extended the applicant’s detention once again. The applicant submits that he challenged these decisions on 17 September and 17 December 2002 respectively but received no reply. 52. According to the Government, the applicant’s appeals against the decision of 16 September 2002 were dated 30 December 2002 and 22 January 2003, whilst the decision of 16 December 2002 was appealed against on 13 January 2003. The Government were unable to specify the reasons for the domestic courts’ failure to examine these appeals. 53. On 22 March 2001 the preliminary investigation was concluded and the prosecutor remitted the applicant’s criminal case to the Moscow City Court for trial. 54. On 4 April 2001 Judge N. listed the case for a hearing on 16 April 2001. 55. On 16 April 2001 the court adjourned the hearing until 21 June 2001. On the latter date the hearing was adjourned until 25 July 2001 since a lawyer for one of the co-accused failed to appear. 56. Judge M. took over the case on 24 July 2001 and scheduled the hearing for 1 August 2001. 57. On 1 August 2001 the court adjourned the case until 2 August 2001, when the case was again suspended until 3 September 2001 because of the failure of some witnesses to appear. 58. On 4 September 2001 the hearing was postponed until 8 October 2001 for the same reasons. 59. By a decision of 8 October 2001 the court fixed the next date of the hearing for 30 November 2001. 60. Between 30 November and 17 December 2001 hearings were held regularly. 61. On 17 December 2001 the case was adjourned on grounds of witnesses’ absence and the need for a psychiatric examination of the applicant. The examination was carried out on 4 April 2002. 62. In July 2002 the case was transferred to Judge Z. The next hearing took place in August 2002, when the case was yet again postponed until 17 October 2002 due to witnesses’ failure to appear. 63. On 30 January 2003 the Moscow City Court convicted the applicant of conspiracy to murder and sentenced him to eight years and six months’ imprisonment. The court did not address the question of the lawfulness of the applicant’s arrest and detention until his arrival in Moscow on 4 November 2000. 64. On 27 November 2003 the Supreme Court of Russia upheld the judgment on appeal.