CASE OF BIRULEV AND SHISHKIN v. RUSSIA
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)
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova
5. The first applicant was born in 1978 and lives in Tsentrelnye Koryaki in the Kamchatka Region. 6. On 20 June 2005 at approximately 3.30 a.m. he was arrested by traffic police while driving a vehicle which had been declared stolen earlier in the evening, and was taken to the local police station. 7. On the same day at 3.00 p.m. he gave a confession statement. 8. Later on at approximately 6.00 p.m. a record of his arrest was drawn up. This document indicated that he had been apprehended at 6.00 p.m. by an investigator, Mr S. 9. On 22 June 2005 the Yelizovskiy District Court (“the District Court”) authorised the first applicant’s detention. The court found that there were grounds to believe that he would abscond, because he was suspected of having committed an offence punishable by more than two years’ imprisonment, was unemployed and without any source of income, and did not reside at his official address. It further referred to the risk that the first applicant might continue his criminal activities on the grounds that, having been released on parole on 17 June 2005, he had been apprehended three days later on suspicion of an offence similar to that for which he already had a conviction. 10. On 29 June 2005 the first applicant was charged with theft. 11. On 19 July 2005 the detention order of 22 June 2005 was upheld on appeal. 12. By a judgment of 1 March 2006, upheld on appeal on 2 May 2006, the District Court convicted the first applicant as charged and sentenced him to ten years’ imprisonment. 13. The second applicant was born in 1976 and lives in Vladimir. 14. On 10 April 2005 Ms F. complained of having been raped by three unidentified individuals. 15. A criminal investigation into the rape was opened at 12 noon on 11 April 2005 and the second applicant was apprehended on the same day. He and the Government provided differing versions of how he was arrested. 16. According to the second applicant, at around 12 noon he was stopped in the street by police and escorted to the local police station. Between 12.25 p.m and 12.33 p.m. he took part in an identification parade, as a result of which he was identified by the victim as one of the individuals who had raped her. Between 3.10 p.m. and 4.20 p.m. he was questioned by an investigator. A record of his arrest was not drawn up until 11.35 p.m. 17. According to the Government, the second applicant was taken to the police station as a witness. They have provided no indications as to when he was taken there or why he was considered to be a witness for the purposes of the investigation. The Government further claimed that the second applicant was interviewed as a witness between 3.10 p.m. and 4.20 p.m., and that the identification parade during which he was identified by the victim took place between 10.25 p.m. and 10.33 p.m. At 11.25 p.m. he was arrested as a criminal suspect and ten minutes later an arrest record was drawn up. 18. During the above procedures, the second applicant waited in different offices of the police station. Had he tried to leave, he would have been stopped by the police officers who were standing guard at the doors of the offices. As soon as the record of arrest was compiled, he was incarcerated. 19. At 6.25 p.m. on 13 April 2005 the Gus-Khrustalnyy Town Court of the Vladimir Region (hereinafter “the Town Court”) remanded the second applicant in custody on the basis of Article 108 of the Russian Code of Criminal Procedure (hereinafter “the CCrP”) (see paragraph 34 below). It found that he was suspected of having committed a serious criminal offence, had been identified by the victim, had escaped from the scene of the crime, did not work and had a recent criminal record, and that for those reasons he might abscond, reoffend, influence the victim and the other parties to the proceedings, destroy evidence, or otherwise obstruct the proper administration of justice. The Town Court did not address the second applicant’s allegation that he had been unlawfully detained for more than forty-eight hours without judicial authorisation. 20. On 15 April 2005 the second applicant appealed. Among other things, he complained that his detention was unlawful, on the grounds that he had been brought before a judge more than forty-eight hours after his actual arrest and the Town Court had not established any “exceptional circumstances”, as required by the CCrP in order to place a suspect in detention (see paragraph 33 below). 21. On 16 May 2005 the Vladimir Regional Court (“the Regional Court”) upheld the order of 13 April 2005. It considered that the second applicant had been apprehended as indicated in the arrest record. It further found that the Town Court had based its decision on sufficient grounds. Lastly, as regards his argument concerning the absence of “exceptional circumstances”, the Regional Court held as follows: “The exceptional nature of remanding a criminal suspect in custody implies that he must be charged not later than ten days from the time of his arrest. Otherwise, he should be immediately released.” 22. In the meantime, on 19 April 2005 the second applicant was charged with aggravated rape. 23. On 20 December 2005 the Town Court found him guilty as charged and gave him a custodial sentence. 24. On 3 March 2006 the Regional Court upheld the judgment on appeal. 25. Between 20 April 2005 and 22 March 2006 the second applicant was held in Vladimir Prison T-2 in connection with the criminal proceedings against him. He submitted that the facility had been severely overcrowded and in an appalling sanitary condition. The detainees did not have access to fresh air, sunlight or drinking water.