CASE OF DOLGOVA v. RUSSIA
Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic and Convention proceedings) - claim dismissed
Christos Rozakis
6. The applicant was born in 1986 and lives in Moscow. 7. The applicant was a member of the National Bolsheviks Party. 8. At 12.30 p.m. on 14 December 2004 forty Party members effected an unauthorised entry into the reception area of the Administration of the President of the Russian Federation (the “President’s Office”). Some of them pushed away the guards at the entrance and occupied room no. 14 on the ground floor. They locked themselves in, blocked the door with a heavy safe and let the others enter through the window. 9. Until the police arrived, the Party members, including the applicant, waved placards through the office window, threw out leaflets and chanted slogans calling for the President’s resignation. They stayed in the office for approximately one hour. 10. On 14 December 2004 the applicant came with her friends for a walk in the city centre. Suddenly she found herself in the midst of a dense crowd and she thought it best to go in the same direction as everyone else. The crowd brought her into a certain building which turned out to be the waiting area of the President’s Office. She felt weak and sat down on the floor. The people around shouted and chanted but she could not understand what was going on. Then the police arrived and took everyone in custody. 11. The media reported that on 14 December 2004 a group of about forty members of the National Bolsheviks Party locked themselves in an office on the ground floor of the President’s Office. 12. They asked for a meeting with the President, the deputy head of the President’s Office Mr Surkov, and the President’s economic advisor Mr Illarionov. They waved placards with “Putin, resign!” («Путин, уйди!») written on them through the window and distributed leaflets with a printed address to the President that listed ten aspects in which he failed to respect the Russian Constitution, and a call for his resignation. 13. The intruders stayed in the office for one hour and a half until the police broke through the door. They did not offer any resistance to the authorities. 14. On 15 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicant’s placement in custody on the ground that she was suspected of a particularly serious criminal offence. The applicant did not appeal against the arrest warrant. 15. On 21 December 2004 an investigator for particularly important criminal cases of the prosecutor’s office of the Central Administrative District of Moscow charged the applicant with violent overthrow of State power (Article 278 of the Criminal Code) and intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214). 16. Between 24 December 2004 and 4 February 2005 the applicant did not participate in any investigative actions. 17. On 4 February 2005 the Zamoskvoretskiy District Court of Moscow extended her detention on remand until 14 April 2005. The court’s entire reasoning read as follows: “The court sees no reason to apply a more lenient preventive measure to [the applicant]. She is charged with a criminal offence under Article 278 of the Criminal Code which is classified as a particularly serious one and requires a thorough, comprehensive and objective investigation. Notwithstanding the fact that [the applicant] has a permanent registered place of residence in Moscow, has no criminal record, is a student, has positive references and suffers from frail health, the court, taking into account the nature and factual basis of the imputed offences, gravity of the charges, her character and other circumstances described in the investigator’s decision, considers that there are sufficient indications to believe that, once released, [the applicant] would abscond or otherwise interfere with the proceedings.” 18. On 3 March 2005 the Moscow City Court upheld, on an appeal by the applicant, the remand decision of 4 February 2005, finding that it had been lawful, “sufficiently reasoned and justified”. 19. On 21 February 2005 the applicant’s charge was amended to that of participation in mass disorders, an offence under Article 212 § 2 of the Criminal Code. 20. On 11 April 2005 the Zamoskvoretskiy District Court granted the prosecution’s request for a further extension of the applicant’s detention until 14 August 2005, relying on the following reasons: “At present there are no reasons to vary the preventive measure applied to [the applicant]... Although [the applicant] has a permanent registered place of residence in Moscow, having regard to the gravity of the charge against her, the fact that the charge is well-founded, the circumstances of the crime, there is no guarantee that the [applicant] would not default on the investigator’s and court’s summons if released from custody.” 21. On 7 June 2005 the investigation was completed and thirty-nine persons, including the applicant, were committed for trial before the Tverskoy District Court of Moscow. 22. On 20 June 2005 the trial court scheduled the preparatory hearing for 30 June 2005. It extended the detention on remand of all the defendants, noting that “the grounds on which the preventive measure [had been] previously imposed, still persist[ed]” and that “the case-file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. 23. On 30 June 2005 the court fixed the opening of the trial for 8 July 2005. It rejected the defendants’ requests for release, citing the gravity of charges against them and the risk of their absconding or obstructing justice. 24. On 10 August 2005 the Tverskoy District Court rejected the applications for release filed by many defendants, including the applicant, although she had produced a personal surety from Mr M. Rotmistrov, a member of the lower chamber of the Russian Parliament. The court held: “The court takes into account the defence’s argument that individual approach to each defendant’s situation is essential when deciding on the preventive measure. Examining the grounds on which... the court ordered and extended detention on remand in respect of all defendants without exception... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all defendants, and to the personal sureties offered by private individuals and appended to the case file, the court concludes that, if released, each of the applicants can abscond or obstruct justice in some other way... In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant...” 25. On 8 December 2005 the Tverskoy District Court found the applicant and her co-defendants guilty as charged and gave her a suspended sentence of three years’ imprisonment. It appears that the applicant did not lodge an appeal against the conviction. 26. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the Code”). 27. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention on remand (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112). 28. 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, re-offend 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). 29. Detention on remand may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1). 30. After arrest the suspect is placed in custody “pending the investigation”. The maximum permitted period of detention “pending the investigation” is two months but it can be extended for up to eighteen months in “exceptional circumstances” (Article 109 §§ 1-3). The period of detention “pending the investigation” is calculated to the day when the prosecutor sent the case to the trial court (Article 109 § 9). 31. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). The term of detention “during the trial” is calculated to the date the judgment is given. It may not normally exceed six months, 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).