CASE OF DUBINSKIY v. RUSSIA
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković
5. The applicant was born in 1975 and lives in Velikiye Luki, Pskov Region. 6. On an unspecified date the regional police department for combating organised crime opened a criminal investigation into the activities of an organised group involved in a series of residential burglaries and car thefts in Pskov Region. The applicant was suspected of acting as a coordinator and go-between for the group. In the course of the investigation of the group’s activities, on 25 June 2007 the Pskov Regional Court authorised the tapping of the applicant’s telephone, a search of his home and the interception of his communications for a period of six months. 7. On 10 August 2007 the police intercepted the applicant’s mobile phone communications with T. which they conducted while they were stealing a Lada car in the settlement of Dedovichi, Pskov Region. The car belonged to the President of the Dedovichi District Court. An official investigation into the car theft was opened on 13 August 2007. On 8 December 2007 the investigation was suspended, as the perpetrator(s) could not be found. 8. On 27 March 2008 the police intercepted another mobile phone communication between the applicant and T. which they conducted while they were stealing a Lada car in the town of Opochka, Pskov Region. Police officers were at the scene. They observed T. driving a Volkswagen car and the applicant driving the stolen Lada car. Then they followed the applicant to a garage in Velikiye Luki. 9. In the morning of 28 March 2008 the police arrested the applicant while he was taking the stolen Lada car out of the garage. 10. The applicant was charged with a car theft (theft causing serious financial detriment). On 30 March 2008 he was brought before the Opochka District Court, Pskov Region, where investigator B., arguing that the applicant might (1) abscond, (2) continue criminal activities, or (3) put pressure on witnesses, other parties to the proceedings, destroy evidence or otherwise interfere with the administration of justice, asked for the applicant’s remand in custody during the investigation. The court, however, dismissed the investigator’s motion. In particular, the court noted as follows: “Investigator B. submitted that he had no factual information substantiating the fact that [the applicant] might abscond, that he put or might put any pressure on the witnesses by way of threatening them or [that he might] otherwise interfere with the establishment of the truth in the case. There is no evidence that would allow the court to conclude that another car or the car plates discovered in the [applicant’s] garage had anything to do with the criminal activities involving car thefts. The court was not provided with any information about the nature of the equipment found [in the garage] or confirmation that it had been used to modify the registration numbers on the vehicle’s parts or to perform other work on the vehicles.” 11. After the court hearing, the applicant was taken back to the Opochka police station, where he signed an undertaking not to leave his place of residence during the investigation. However, he was not released. It appears that on the same date, the Dedovichi Department of the Interior reopened the criminal investigation of the car theft of 10 August 2007 (see paragraph 7 above). At 5:40 p.m. police officers from the Dedovichi police station showed up at the Opochka police station and rearrested the applicant on suspicion of involvement in the car theft of 10 August 2007. He was taken to the Dedovichi police station at 8:15 p.m. and booked in. 12. On 31 March 2008 investigator I. from the Dedovichi Department of the Interior indicted the applicant on a charge of car theft (theft causing serious financial detriment committed in concert with one or more persons) concerning the theft of the Lada that took place on 10 August 2007. 13. On 1 April 2008 investigator I. applied to the Dedovich District Court, Pskov Region seeking the applicant’s remand in custody during the investigation. Referring to the gravity of the charges, the investigator argued that the applicant might continue criminal activities, abscond, put pressure on witnesses, destroy evidence and interfere with the establishment of the facts of the case. 14. On the same date the Dedovichi District Court examined the investigator’s application. According to the applicant, he argued before the District Court that the application, being a repeated attempt to remand him in custody, was contrary to the rules of criminal procedure. The District Court authorised the applicant’s detention during the investigation. Referring to the car theft which took place on 10 August 2007, the court noted as follows: “It is evident from the materials submitted to the court that [the applicant] is accused of a premeditated serious crime which entails a custodial sentence exceeding 2 years’ imprisonment. He does not have a criminal record. He has a permanent place of residence, is in employment and has a family. It is evident from the materials submitted to the court that [the applicant] has been involved in car theft for a long time. It is so noted in the information provided by [the regional department for combating organised crime], the investigator’s decision of 28 March 2008 to open a criminal investigation against the applicant and the report on the search of the [applicant’s] garage of 28 March 2008. These facts confirm the investigator’s argument that [the applicant] might continue his criminal activity, [and] interfere with the administration of justice by the destruction or concealment of stolen property. The [applicant’s and his lawyer’s] arguments that [the applicant] has a permanent place of residence, [is in] employment and [has] a family, [and] that he undertakes not to abscond, cannot be regarded as sufficient to dismiss the investigator’s application to remand [the applicant] in custody. ... Having regard to the above, the court accepts the investigator’s and prosecutor’s arguments that the applicant should be remanded in custody. The court considers that the use of a less strict measure of restraint is not possible.” 15. The applicant appealed against the court order of 1 April 2008. He reiterated that the decision to remand him in custody had not been compatible with the rules of criminal procedure and indicated, inter alia, that the judge of the Dedovichi District Court had not been impartial or independent, given that the applicant had been charged with the theft of a car belonging to the President of the court in question. 16. On 23 April 2008 the Pskov Regional Court upheld the order of 1 April 2011 on appeal, noting that the applicant’s doubts as to the impartiality and independence of the judge who had delivered the decision in question were unfounded. 17. On 23 May 2008 the Dedovichi District Court further extended the applicant’s detention until 24 July 2008, relying on the following reasoning: “[The applicant] is accused of a premeditated serious crime which entails a custodial sentence exceeding 2 years’ imprisonment. If released, he might put pressure on witnesses and other parties to the proceedings, destroy evidence or otherwise interfere with the establishment of the facts of the case. There are grounds to believe that [the applicant], if released, might abscond or continue his criminal activity.” 18. On 11 June 2008 the Regional Court upheld the order of 23 May 2008 on appeal. 19. On 15 July 2008 the Dedovichi District Court further extended the applicant’s detention until 30 August 2008. The court repeated verbatim the reasoning of its previous order of 23 May 2008. On 6 August 2008 the Regional Court upheld the decision of 15 July 2008 on appeal. 20. On 30 June 2008 the applicant was indicted on a charge of a car theft committed by an organised group and on 21 July 2008 the pending criminal cases against the applicant concerning the car thefts of 10 August 2007 and 27 March 2008 were joined and transferred to the Pskov Regional Department of the Interior for investigation. 21. Following the transfer of the applicant’s case to the Pskov Regional Department of the Interior, the question of the applicant’s pre-trial detention fell to be examined by the Velikiye Luki Town Court, Pskov Region. 22. On 21 August 2008 the Town Court extended the applicant’s detention until 17 November 2008. The court reasoned as follows: “The circumstances underlying the [applicant’s] remand in custody have not ceased to exist. He is charged with serious offences. ... Regard being had to the circumstances of the crimes [the applicant] is charged with, there are grounds to believe that, if at large, [the applicant] may put pressure on witnesses or other parties to the proceedings, destroy evidence or otherwise interfere with the establishment of the facts of the case, abscond, [or] continue his criminal activity.” 23. On 10 September 2008 the Regional Court upheld the decision of 21 August 2008 on appeal. 24. On 29 September 2008 investigator B. from the regional department of the interior indicted the applicant on two charges of car theft committed by an organised group, forgery of car plate numbers and vehicle identification numbers and handling stolen property. 25. On 7 November 2008 the Town Court extended the applicant’s detention until 30 December 2008. The court reasoned as follows: “[The applicant] is charged with four premeditated crimes, two of which are classified as serious. There are grounds to believe that, if at large, [the applicant] might interfere with administration of justice, put pressure on victims and witnesses, abscond, [or] continue criminal activities. These [grounds] are supported by the materials provided by the regional department for combating organised crime ... and other materials submitted by the investigator.” 26. On 26 November 2008 the Regional Court upheld the decision of 7 November 2008 on appeal. 27. On 29 December 2008 the Town Court fixed the hearing of the case against the applicant and four other defendants for 12 January 2009. Referring to the gravity of the charges against the applicant and three of the other defendants and the risk that they might continue their criminal activity or interfere with the administration of justice, the court ordered that they remain in custody pending trial. The decision remained silent as to the grounds on which such conclusions were based and also as to the period of such authorised detention or the date of its next review. 28. On 3 June 2009 the Town Court reclassified the charges against the applicant and found him guilty of the theft of two cars committed by a group of persons and causing significant financial detriments to the car owners and forgery of car licence plates and sentenced him to three and a half years’ imprisonment. 29. On 26 August 2009 the Regional Court quashed the applicant’s conviction on appeal and remitted the matter for fresh consideration. The court found that the trial court had failed to correctly establish the facts of the case. It further noted, without specifying the grounds or the time frame that the applicant should remain in custody pending retrial. 30. On 21 September 2009 the Town Court scheduled the retrial for 29 September 2009 and authorised the applicant’s release on an undertaking not to leave his place of residence. The court took into account the fact that the applicant had no previous convictions, that he had a permanent job and a place of residence, and that he had a family and a minor child. 31. On 31 August 2010 the Town Court found the applicant guilty of the theft of two cars and sentenced him to one year and five months’ imprisonment. The court applied the prescription rule and discontinued the criminal proceedings against the applicant in part concerning the charge of forgery of car licence plates. The applicant was relieved from serving the sentence in view of the time he had already spent in detention. 32. On 10 November 2010 the Regional Court upheld the applicant’s conviction on appeal.