CASE OF KLEYN v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Competent court);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);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 5-5 - Compensation)
Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1969 and lived, prior to his conviction, in Chelyabinsk. 6. On 29 December 2000 the applicant was arrested on suspicion of double murder. He remained in custody pending the investigation and trial. 7. On 13 September 2001 the Chelyabinsk Regional Court found the applicant guilty of murder, accessory to murder and attempted fraud, and sentenced him to twenty-three years’ imprisonment. The court comprised one professional judge and two lay judges. 8. On 12 April 2002 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. 9. On 23 July 2004 the applicant lodged a supervisory-review complaint challenging the lawfulness of his conviction. He alleged, inter alia, that the trial court had not been a tribunal established by law, given that the lay judges who considered his case had been appointed to the tribunal in contravention of the applicable legislation. 10. On 22 December 2004 the Kopeysk Town Court of the Chelyabinsk Region reduced the applicant’s sentence by seven months, in compliance with the latest amendments to the Russian Criminal Code. 11. On 29 April 2005 the Presidium of the Supreme Court of the Russian Federation received the case file for supervisory review. 12. On 15 June 2005 the Presidium quashed the judgments of 13 September 2001 and 12 April 2002 and remitted the matter to the Chelyabinsk Regional Court for fresh consideration. Referring to the case of Posokhov v. Russia (no. 63486/00, § 41, ECHR 2003IV), the Presidium noted that the lay judges had not been authorised to consider the applicant’s case, which had affected the lawfulness and well-foundedness of the applicant’s conviction. Lastly, the Presidium ordered that the applicant be detained pending a new trial. 13. On 22 July 2005 the Regional Court fixed the preliminary hearing for 1 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. The parties did not inform the Court of the outcome of the hearing of 1 August 2005. It appears that it was re-scheduled. 14. On 5 August 2005 the Regional Court held a preliminary hearing of the case. The applicant and his lawyer attended the hearing and made submissions to the court. The applicant asked the court to release him on an undertaking not to leave his place of residence. He noted that he had already served over four years of the earlier imposed prison sentence which rendered the further extension of his pre-trial detention unnecessary. The prosecutor discerned no change in the applicant’s situation that would be in favour of the applicant’s release and asked the court to extend the applicant’s detention pending trial. The court fixed the new trial for 18 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. In particular, the court noted as follows: “Deciding on the preventive measure and having heard the parties to the proceedings, the court considers that the remand of the [defendants] in custody during preliminary investigation as a restrictive measure has been lawful and justified. There are no grounds to replace it with a more lenient measure ... in view of the gravity of the charges and the defendants’ character.” 15. On 18 August 2005 the Regional Court opened the trial and on 19 September 2005 it found the applicant guilty as charged and sentenced him to twenty-two years and three months’ imprisonment. The time already served by the applicant was set off against the newly imposed sentence. The court found that the applicant and Sh. had killed V. and Sk. in an attempt to fraudulently obtain the proceeds from the sale of a flat owned by V. The court comprised a single judge. The applicant was represented by a lawyer. 16. On 23 June 2006 the Supreme Court upheld the conviction on appeal. The applicant and his lawyer were present at the hearing and made submissions to the court. On 13 October 2005 the Supreme Court upheld the decision of 5 August 2005 on appeal.