CASE OF LYUBUSHKIN v. RUSSIA
No 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);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque
6. The applicant was born in 1967 and lives in Khabarovsk. 7. On 6 October 2004 the applicant, who was then a police officer, was arrested on suspicion of extortion. On 8 October 2004 the Khabarovsk Zheleznodorozhniy District Court (“the District Court”) remanded him in custody, finding as follows: “There is a reasonable suspicion in the present criminal case, supported by the enclosed documents: statements by B. [the alleged victim of the extortion]; the crime scene report; the report on the marking and examination of the banknotes; the report on the search of and seizure of money from O. [a co-accused]; minutes of interviews with B., the prime suspect O., and K, a witness. When deciding on the remand matter, the court is not required to evaluate whether the existing evidence is sufficient for a finding of guilt. [The applicant], a police officer, is suspected of having masterminded and supervised the commission of a serious crime by a criminal group which included other police officers. It follows from the statements by B. and K. that, after they had complained to the police about extortion, they continued to receive threats of physical violence from [the applicant], Sh. and Z. In these circumstances, [the applicant] must be remanded in custody because a more lenient restrictive measure cannot be imposed.” 8. On 21 October 2004 the Khabarovsk Regional Court (“the Regional Court”) upheld the decision of 8 October 2004 on appeal. 9. On an unspecified date the applicant was charged with organising and facilitating prostitution. 10. On 3 December 2004 the District Court extended the applicant’s pretrial detention until 6 February 2005. The court noted as follows: “Regard being had to the submissions made by the parties, the case file, and the fact that, as a police officer, [the applicant], if not in custody, might abscond, put pressure on victims and witnesses who identified him as a person who had committed a crime, or otherwise interfere with the administration of justice ... The judge does not consider that the restrictive measure imposed on [the applicant] can be replaced with a more lenient one ...” 11. On 16 December 2004 the Regional Court upheld the decision of 3 December 2004 on appeal. 12. On 4 February 2005 the District Court extended the applicant’s detention until 6 April 2005 indicating as follows: “Having studied the case file and having listened to the parties to the proceedings, the court does not discern circumstances that would justify the replacement of the restrictive measure imposed on [the applicant]. [The applicant] is charged with a serious offence. He has organised a criminal group and has been its leader. If not in custody, he can put pressure on the parties to the proceedings. The above presumption as to the [applicant’s] potential conduct is based on the information about the [applicant’s] character and his modus operandi.” 13. On 5 April 2005 the District Court extended the applicant’s detention until 7 May 2005, noting as follows: “... [The] court takes into account the seriousness of the crime [the applicant] is charged with ... The court considers that, as an active police officer able to use his position, [the] applicant might put pressure on victims and witnesses who directly identified him as an offender, or otherwise interfere with the establishment of the truth. Furthermore, the [applicant’s] assertion that he is suffering from a serious disease ... cannot be taken into account by the court. No medical report has been submitted to show whether [the applicant] was fit or not for detention.” 14. On 5 May 2005, the District Court extended the applicant’s detention until 6 July 2005 arguing as follows: in particular that the criminal investigation is being conducted into a group of persons and that [the applicant] is a police officer, the court concludes that he, if not in custody, might abscond, continue criminal activities, put psychological or physical pressure on the victim or witnesses, destroy evidence or, otherwise interfere with the administration of justice.” 15. On 27 June 2005 the District Court extended the applicant’s pre-trial detention until 28 September 2005, reiterating that the applicant might put pressure on victims and witnesses. On 12 July 2005 the Regional Court upheld this decision on appeal, but only extending the applicant’s detention until 6 September 2005. 16. On 18 August 2005 the District Court extended the applicant’s pretrial detention until 28 September 2005. The court reiterated its previous reasoning that the applicant might put pressure on victims and witnesses. 17. On 5 September 2005 the applicant was charged with organisation of a criminal group, accepting bribes, and abuse of position. It appears that the charges of extortion and of organising and facilitating prostitution were dropped. 18. On 15 September 2005 the prosecution submitted the case against the applicant and three co-defendants to the Regional Court for trial. 19. Following a request from the prosecution, on 23 September 2005 the Regional Court allowed the return of the case file to the prosecutor on the grounds that the defendants had not been able to study it. The court dismissed the defendants’ request to release them on bail finding that “the circumstances underlying their remand in custody [were] still present” and extended their detention until 28 November 2005. On 22 December 2005 the Supreme Court of the Russian Federation upheld the decision of 23 September 2005 on appeal. In response to the applicant’s argument that the maximum statutory period of pre-trial detention had expired and he should therefore be released, the court noted that, pursuant to the applicable rules of criminal procedure, the applicant could be detained for eighteen months pending investigation, owing to the seriousness of the charges against him. 20. On an unspecified date the prosecutor forwarded the case file to the court and on 24 November 2005 the Regional Court again granted the prosecutor’s request and returned the case file to the prosecution for five days on the grounds that the defendants had not studied the case file in its entirety. It also extended the applicant’s and his co-defendants’ detention until 28 December 2005, referring to the earlier particularities justifying the defendants’ remand in custody and to the fact that the case involved anonymous witnesses and victims. On 16 March 2006 the Supreme Court upheld the decision of 24 November 2005 on appeal. 21. On 20 December 2005 the Regional Court received the case file and on 27 December 2005, for a third time, it decided to return the case to the prosecutor at his request, reiterating its earlier reasoning. The court extended the defendants’ detention until 28 March 2006, holding as follows: “Since the period of detention of [the applicant], Z. and Sh. ends on 28 December 2005, this period must be extended by three months so as to remedy a violation of the rights of the defence which resulted from the impossibility for defendants and counsel to study the case-file, as well as to allow the investigator to decide subsequently on the restrictive measure in respect of those individuals.” 22. On 7 March 2006 the case was re-submitted for trial. 23. On 20 March 2006 the Regional Court extended the defendants’ detention until 7 September 2006. The court reasoned as follows: “Having discussed with the parties the issue of the [defendants’] detention, regard being had to the seriousness of the charges against them, the court considers that, if not in custody, the defendants might influence the victims and witnesses, abscond or reoffend. It considers it necessary to extend the earlier imposed detention ...” 24. On 24 March 2006 the Regional Court fixed the trial date for 24 April 2006 and noted that the detention earlier imposed on the defendants should remain unchanged. On 26 May 2006 the Supreme Court upheld the decision of 24 March 2006 on appeal. 25. On 8 June 2006 the Supreme Court upheld the decision of 27 December 2005 on appeal. 26. On 11 August 2006 the Regional Court extended the applicant’s detention until 7 December 2006 reiterating, in substance, its earlier reasoning. 27. On 26 October 2006 the jury delivered a not-guilty verdict in the applicant’s case and on 27 October 2006 the Regional Court issued the relevant judgment and ordered the applicant’s immediate release. 28. On 28 August 2007 the Supreme Court upheld the judgment of 27 October 2006 on appeal. 29. On an unspecified date the applicant brought an action for compensation for pecuniary damage resulting from the criminal prosecution. The applicant’s claims included: lost income, legal fees, his lawyer’s travel expenses in connection with the appeal hearing in Moscow, reimbursement of the cost of food, a television set and a refrigerator his family had sent to him while he had been in detention. On 9 April 2008 the Regional Court granted the applicant’s claims in part and awarded him 285,516 Russian roubles (RUB) for legal fees and his lawyer’s travel expenses and RUB 314,634.64 for loss of income. The applicant did not appeal. 30. On an unspecified date the applicant brought a civil claim seeking compensation for non-pecuniary damage in connection with the criminal prosecution. In particular, he alleged that he had been detained pending criminal proceedings against him in the absence of relevant evidence and sufficient reasoning. The applicant claimed RUB 2,000,000 in this respect. 31. On 8 October 2014 the Khabarovsk Tsentralniy District Court granted the applicant’s claims in part and awarded him RUB 500,000. The court noted, in particular, that an acquittal in the criminal proceedings had been a catalyst for the restoration of his good name and position before the trial (реабилитация, hereinafter “rehabilitation”) “...’s] claims should be granted in part. In the present case, the court takes into consideration that the decisions to detain [the applicant] pending trial were authorised by court orders which were subject to review by superior courts which examined their lawfulness and the underlying reasons and upheld [said decisions] on appeal.” 32. On 14 January 2015 the Regional Court upheld the judgment of 8 October 2014 on appeal.