CASE OF STRELETS v. RUSSIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen
5. The applicant was born in 1956 and lives in Moscow. 6. At the material time the applicant held the post of Vice President of LLC Volga Aviaexpress Airlines (ООО “Авиакомпания ВолгаАвиаэкспресс”). 7. On 28 July 2003 the applicant left for annual leave in South Africa, where he stayed until 17 September 2003, following which he was in the United Kingdom until 23 September 2003 before returning to Russia. 8. Meanwhile, on 30 July 2003 the Volgograd Regional Prosecutor’s Office instituted criminal proceedings under Article 159 § 3 (b) of the Criminal Code for fraud involving a Yak-42 aircraft. 9. On 24 September 2003 the applicant was placed on an international wanted list. 10. On 26 September 2003 Tsentralniy District Court (Volgograd – “Tsentralniy District Court”) ordered the applicant’s remand in custody on suspicion of fraud. The District Court held as follows: “... Following the institution of the criminal proceedings [the applicant] absconded from Volgograd and the Russian Federation. In connection with the establishment of [the applicant’s] whereabouts in South Africa, on 24 September 2003 he was placed on a wanted list. ... Taking into account the fact that [the applicant] is charged with a serious offence, [that he] fled from investigation, has actively obstructed the establishment of the truth in the case, and may continue the criminal activity, the court considers it necessary to choose a measure of restraint in the form of placement in custody.” 11. According to the applicant, until 29 September 2003 he did not know anything about the criminal proceedings against him. As soon as he knew about them, he went to the investigation department of the Volgograd Regional Prosecutor’s Office, where he was arrested pursuant to the court order of 26 September 2003. 12. The applicant was placed in a temporary detention facility, where he was kept until 17 October 2003. Throughout this period the applicant’s family was unaware of his whereabouts. The applicant was subsequently transferred to IZ-34/1 remand prison (Volgograd). 13. In the meantime, on 14 October 2003 Volgograd Regional Court upheld the decision of 26 September 2003 on appeal. 14. On 28 November 2003 and 15 March 2004 Tsentralniy District Court extended the applicant’s pre-trial detention until 30 March and 30 May 2004 respectively. On both occasions the court relied on the gravity of the charges against the applicant and the fact that he had been placed on an international wanted list prior to his arrest, which gave the court sufficient grounds to believe that if at large the applicant might obstruct the proceedings. Under these circumstances the court held that the application of a non-custodial preventive measure was not possible. 15. On 9 December 2003 Volgograd Regional Court upheld the extension order of 28 November 2003 on appeal. The case file contains no information as to whether the applicant appealed against the extension order of 15 March 2004. 16. On 31 May 2004 the applicant’s case file was remitted to Dzerzhinskiy District Court (Volgograd – “Dzerzhinskiy District Court”) for examination on the merits. 17. On 30 May 2004 the applicant’s detention ordered by the decision of 15 March 2004 expired. No other decision was made regarding his detention until 14 June 2004. However, the applicant remained in detention. 18. On an unspecified date in 2005 the applicant sought compensation for unlawful detention between 30 May and 14 June 2004. 19. On 27 March 2006 Tsentralniy District Court acknowledged that the applicant’s detention in the above period had been unlawful and awarded him 5,000 Russian roubles. 20. The applicant submitted that the above judgment remained unenforced to date. 21. On 14 June 2004 Dzerzhinskiy District Court fixed a date for a preliminary hearing of the case and held that the preventive measure applied to the applicant and three other co-defendants “should remain unchanged”. 22. On 26 October 2004 Dzerzhinskiy District Court scheduled the opening day of the trial and ordered that the preventive measure in respect of the applicant and his three co-defendants “should remain unchanged”. The applicant’s request for release was dismissed as follows: “[The applicant and his three co-defendants] are charged with grave crimes punishable with long-term imprisonment. The custodial measure was applied [to them] during the preliminary investigation after assessment of the defendants’ personalities, their health and the gravity of the crimes [charged against them]. The arguments of the defendants and their representatives about the unlawful application of the custodial measure ... cannot be taken into consideration since this [issue] is not the subject matter of the present hearing. ...” 23. The applicant appealed against the above decision, in so far as it concerned the preventive measure, to Volgograd Regional Court, arguing that the custodial measure had been applied to him unlawfully and without consideration of his personal circumstances. The applicant’s co-defendants also appealed. 24. On 25 January 2005 Volgograd Regional Court upheld the decision of 26 October 2004 on appeal. 25. However, on 14 April 2005 the Presidium of Volgograd Regional Court quashed the appeal decision of 25 January 2005 by way of supervisory review, as it failed to address the arguments advanced on behalf of the applicant and his co-defendants by their representatives. 26. On 19 July 2005 Volgograd Regional Court again upheld the decision of 26 October 2004 on appeal. 27. In the meantime, on 30 November 2004 Dzerzhinskiy District Court extended the applicant’s and his three co-defendants’ detention for three months, until 28 February 2005: “The circumstances which prompted the application of the custodial measure did not change. The defendants’ reference to the fact that they cannot exert pressure on witnesses or victims, as the preliminary investigation is over, and that they will not abscond as they have no previous criminal record and are no danger to society, can not be accepted by the court, because at the present moment the trial has not yet started, and the court has not begun the examination of the evidence in the case, including the examination of witnesses and victims ... In such circumstances the court does not find grounds for altering the custodial measure to a more lenient one ...” 28. On 25 February 2005 Dzerzhinskiy District Court extended the applicant’s and his three co-defendants’ detention for three months, until 28 May 2005, even though the prosecution considered it no longer necessary: “The defendants are charged with grave crimes punishable by long-term imprisonment. The custodial measure was applied [to them] after consideration of their personalities, health, family situation, existence of dependents, and the gravity of the crimes [with which they were charged]. No medical certificates indicating that the defendants cannot be detained in the remand prison for health reasons have been provided to the court. The circumstances which prompted the application of the custodial measure have not changed so far. The defendants’ statements that they cannot exert pressure on witnesses and victims, as the majority of them have already been questioned by the court, and that they will not abscond as they have no previous criminal record and are not a danger to society, cannot be accepted by the court, because at the present moment the trial has not been completed and the court has not examined the evidence in full. The defendants’ maintaining their innocence ... cannot justify changing the custodial measure to a more lenient one, as the court is yet to assess the cumulative evidence and to reach a conclusion as to the defendants’ guilt or innocence ...” 29. On 27 May 2005, having reiterated its previous reasoning, Dzerzhinskiy District Court extended the applicant’s and his three codefendants’ detention for another three months, until 28 June 2005. 30. On 7 June 2005 the Dzerzhinskiy District Court convicted the applicant of fraud and forgery and sentenced him to five years’ imprisonment. The pronouncement of the judgment took four hours, from 8.30 p.m. to 00.30 a.m. the following day. The applicant’s and his co-defendants’ request to be allowed to sit down during the pronouncement of the judgment was turned down. 31. On 4 October 2005 the Volgograd Regional Court upheld the judgment on appeal. The court held that the applicant’s sentence should be suspended for two years, and the applicant placed on probation. 32. On 5 October 2005 the applicant was released. 33. According to the applicant, on the dates of the hearings he was woken up at 6 a.m., taken from his cell to the “waiting unit” or “assembly cell”, together with other detainees who had a hearing on that day, and later on taken to the convoy area of the court-house. The applicant had to wait in that area for long hours, sometimes until late in the afternoon, until called by the court. At night the convoy transferred him back to the remand prison, and he was again woken up early in the morning the following day to be taken to the court. He received no food on the days of his transfers to the courthouse, either at the remand prison or in the courthouse. 34. According to the Government, the applicant was taken to the courthouse on the following dates: 35. The Government submitted that on the days of the applicant’s transfers to the court-house the applicant was woken up as usual at 6 a.m. As a rule, he was returned to the remand prison before 10 p.m. On the rare occasions when the applicant was returned to the remand prison after 10 p.m. he was allowed to sleep at any time during the next day. The Government were unable to submit information as to the exact time of the applicant’s arrivals at the remand prison from the court-house because the relevant documentation had been destroyed in 2006 and 2009 due to the expiry of the retention period, but they affirmed that the court’s working hours were from 9 a.m. to 6 p.m. 36. According to the Government, on the dates of the applicant’s transfers to the District Court he received dry rations (bread or dry biscuits, tinned first and second courses, sugar, tea, a plastic spoon and a plastic cup), in compliance with the applicable legal norms. In the “waiting unit” of the remand prison and the convoy area of the court the applicant was provided with hot water if he requested it. In support of their submissions the Government provided a certificate issued by the governor of IZ-34/1 on 12 October 2010 accompanied by two invoices (накладные) from the applicant’s remand prison record, dated 11 May and 20 May 2005 on provision of fifty-two dry rations and one dry ration respectively to detainees transported to the court-house on those dates. 37. 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”). 38. “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 in court (Article 112). 39. The Code makes a distinction between two types of detention: 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. 40. 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 maximum length of detention pending the investigation is 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). 41. From the time the prosecutor sends the case to the trial court, the defendant’s detention falls under the category “before the court” (or “pending trial”). The period of detention pending trial is calculated up to the date on which the first-instance judgment is given. It may not normally exceed six months from the moment the case file arrives at the court, 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). 42. 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 Supreme Court of Russia noted with regard to the provisions of Article 255 § 3 of the Code that, when deciding whether to extend a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its maximum duration (paragraph 16). 43. An appeal may be lodged with a higher court within three days against a judicial decision ordering or extending detention. The appeal court must decide the appeal within three days of receiving it (Article 108 § 10). 44. At any time during a trial the court may order, vary or revoke any preventive measure, including detention (Article 255 § 1). An appeal against such a decision lies with the higher court. It must be lodged within ten days and examined no later than one month after its receipt (Articles 255 § 4 and 374). 45. The Pre-trial Detention Act (Federal Law no. 103FZ of 15 July 1995) provides that detainees have, in particular, the right to receive free food, including when they are taking part in court hearings, and to have eight hours’ uninterrupted sleep at night (section 17 §§ 9 and 10). 46. On 4 February 2004 the Ministry of Justice adopted rules on supply of dry rations, under which those suspected or accused of criminal offences should be supplied with dry rations (bread, precooked first and second courses, sugar, tea, tableware) during their presence at a court-house. Detainees should be supplied with hot water to consume with the rations.