CASE OF MIMINOSHVILI v. RUSSIA
Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;No violation of Art. 6-1;No violation of Art. 6-3-b;No violation of Art. 6-1 and 6-3-d;No violation of Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicant was born in 1960 and lives in Moscow. 6. In 2000 Mr D., a businessman from Moscow informed the police that since 1996 he and his two business partners had been paying a monthly fee to a local gang for “protection”. Mr D. gave the police audio records of his telephone conversations with the gangsters, which he had secretly made when the “fee” had become too burdensome for him. The police set up an undercover operation. Police agents secretly observed the meetings between the three businessmen and the gangsters and recorded their conversations. At the last meeting, which took place on 25 September 2000, the businessmen handed to the emissaries of the gang the money they had earlier received from the police. After the receipt of the money the two emissaries of the gang were arrested and the money (which had been previously marked by the police) was seized from them. One of the alleged gangsters was Mr M., the applicant’s brother. 7. On 9 April 2001 the applicant was charged with large-scale extortion as part of an organised criminal group (Article 163 § 3 (a) and (b) of the Criminal Code of the Russian Federation). However, because his whereabouts were unknown, on 18 April 2001 the case against the applicant was separated from the case of other members of the group. On 22 May 2001 the applicant was put on a wanted list. 8. On 1 June 2001 the Moscow City Prosecutor issued a detention warrant in respect of the applicant. It referred to the gravity of the charges and the risk of his absconding, as well as to the fact that the applicant was on the wanted list. The detention warrant did not specify the period of detention. 9. On 7 April 2002 the applicant was arrested at his house in the Moscow Region. On the same date he was detained. 10. On 6 June 2002 the Moscow City Prosecutor authorised the extension of the applicant’s detention until 9 August 2002. The detention warrant referred to the gravity of the charges and the risk of the applicant absconding, re-offending or interfering with the investigation. There is no information on whether the applicant appealed against that decision. 11. On 1 August 2002 the Babushkinskiy District Court of Moscow considered the detention request lodged by the prosecution. The defence argued that there were no grounds for continued detention since the applicant had no criminal record, permanently resided in Moscow, and had not tried to flee from the investigation – at the time when he had been on the wanted list he had been living in his summer house in the Moscow Region with his minor children and had not been aware of the proceedings against him. The defence also contended that the charges against the applicant were unfounded and noted long periods of inactivity on the part of the investigation authorities during previous detention periods. 12. The court rejected those arguments and extended the applicant’s detention until 7 October 2002. The court held that the applicant had been accused of grave crimes and that he had to take part in several investigative activities. The court also found that the applicant would flee from justice given that he had previously been on the wanted list, and had been arrested in the Moscow Region. There is no information on whether the applicant appealed against that decision. 13. On 2 October 2002 the District Court extended the applicant’s detention until 9 December 2002 holding that there were no grounds to amend or revoke the preventive measure, given the gravity of the charges and the risk of his absconding. There is no information on whether the applicant appealed against the decision. 14. On 28 November 2002 the investigation was completed and the case file was sent to the Nikulinskiy District Court (hereinafter – the District Court). 15. On 11 December 2002 the District Court scheduled a preparatory hearing. In its decision to hold a preparatory hearing it also ordered that the applicant’s detention should remain unchanged. The court neither specified the time-limit for his detention nor gave the reasons for such decision. 16. On 24 December 2002 the preparatory hearing was held. The defence filed a request for release stating that the decision ordering the applicant’s detention pending investigation had expired and that he was therefore being unlawfully detained. They also noted that the decision of 11 December 2002 did not contain any reasoning. The District Court rejected the request referring to the gravity of the charges and to the fact that the court had not yet assessed the evidence. As to the subject matter of the accusations against the applicant, the District Court remitted the case to the prosecution because the bill of indictment had been issued improperly and was not ready for examination at the trial. The prosecution was given five days to modify the bill of indictment. The ruling of the District Court referred to Article 236 § 1 (2) of the Russian Code of Criminal Procedure (CCrP) (“Types of decision which can be taken at the preparatory hearing”), Article 237 § 1 (1) (“Returning the case to the prosecutor”), and Article 255 § 3 (“Deciding on the measure of restraint [during the trial proceedings]”). 17. The prosecution appealed against the part of this decision concerning the remittal. The defence appealed against the refusal to release the applicant. The appeals were lodged on 26 and 30 December 2002 respectively. 18. According to the Government, the applicant’s statement of appeal against the detention order of 24 December 2002 was received by the District Court on 15 January 2003. On 28 January 2003 the applicant was handed a copy of the appeal by the prosecution. The case was received by the Moscow City Court on 13 February 2003. The appeal hearing was scheduled for 5 March 2003. However, since the applicant’s lawyers failed to produce powers of attorney, the appeal hearing was adjourned until 13 March 2003. 19. On 13 March 2003 the Moscow City Court allowed the prosecution’s appeal and referred the applicant’s case back to the District Court for a preparatory hearing. The appeal of the defence was dismissed for the same reasons as given by the District Court in its decision of 24 December 2002. The City Court’s decision also referred to the provision in the CCrP establishing a default six-month detention period after the referral of a case to the trial court. 20. On 21 April 2003 the second preparatory hearing was held. The defence filed a new application for release. In addition to the arguments mentioned earlier they referred to the unreasonable period of detention and the lack of special diligence during the proceedings. The District Court once again ordered the case to be remitted to the prosecutor and rejected the request for release, relying on the same arguments as in the previous decision, namely the gravity of the charges and the need to carry out additional investigative activities. The ruling contained references to Articles 236 § 2 (1) and 237 § 1 (1) of the CCrP. Both prosecution and defence appealed. 21. On 5 June 2003 the Moscow City Court returned the case to the District Court for another preparatory hearing. It also upheld the decision of the District Court regarding the applicant’s detention. 22. On 2 July 2003 the District Court scheduled a preliminary hearing, and held that the applicant should stay in custody. It does not appear that the court indicated in its ruling any time-limit for the applicant’s further detention. 23. On an unspecified date the defence appealed against the ruling of 2 July 2003. 24. On 9 July 2003 the court held a preliminary hearing and scheduled a hearing on the merits. The District Court rejected the applicant’s request for release and confirmed that the applicant should remain detained pending trial, without, however, indicating any time-limit for the detention. 25. On 18 July 2003 the defence lodged an appeal against the decision of 9 July 2003. They claimed that the six-month time-limit for detention pending trial had expired on 28 May 2002 and that the applicant was therefore being detained unlawfully. 26. On 21 July 2003 the applicant’s detention pending trial was extended for three months because judgment on the merits had not yet been delivered. The District Court referred to the gravity of the charges and to the fact that the court had not yet assessed the evidence. The defence appealed. The statement of appeal against the decision of 21 July 2003 was dated 30 July 2003, although it is unclear whether it was introduced on that date. 27. On 3 September 2003 the Moscow City Court dismissed appeals against the decisions of 2, 9 and 21 July 2003 holding that the findings of the District Court had been correct. 28. According to the applicant, on 7 October 2003 his detention was extended for three more months, with the same reasoning as before. In support of his assertion the applicant submitted a copy of the ruling of the Nikulinskiy District Court of Moscow of that date, signed by Judge K. The defence appealed against that ruling; the applicant submitted a copy of the statement of appeal with the District Court’s stamp on it confirming the date of introduction (16 October 2003) and the incoming mail number (no. 4547). The applicant claimed that the appeal court had never considered the complaint. The Government claimed that on 7 October 2003 the applicant’s detention had not been extended, and that the applicant’s detention was still covered by the detention order of 21 July 2003. 29. On 21 October 2003 the District Court adopted the judgment in the applicant’s case. 30. The applicant’s case was initiated jointly with the cases of other members of the organised criminal group, including the applicant’s brother, Mr M. They were all accused of large-scale extortion. Owing to the failure to find the applicant, his case was separated from the case of the other members of the group. 31. On 27 December 2002 the Nikulinskiy District Court convicted Mr M. of large-scale extortion as part of an organised criminal group (Article 163 § 3 (a) and (b) of the Criminal Code of the Russian Federation). The District Court was sitting as a panel of three judges comprising a professional judge (Ms K., the president), and two lay judges. 32. The judgment of 27 December 2002 started with the finding that Mr M. had committed extortion in concert with “unidentified persons”. In relating the facts of the case the court once mentioned the applicant’s name. Specifically, on page 5 of the judgment the court held that an unidentified member of the gang had mentioned in a telephone conversation with one of the victims that “[the applicant] was unhappy that the victims had not transferred the money to [Mr M.] at his first request”. 33. The applicant’s name was also mentioned in the part of the judgment summarising the witness statements. In particular, on page 6 of the judgment in connection with the testimony of Mr M., who denied his or his brother’s involvement in the criminal group. The District Court, however, found that Mr M.’s testimony was refuted by the incriminating evidence, namely witness statements. Some of the witnesses, as well as confirming the role of Mr M. in the gang, mentioned that the applicant had been an important person in the gang and participated in negotiations as a person of authority (page 7). They further mentioned that the applicant had told the victims that “they had to pay him in order not to pay other persons he had talked to” (page 7), that the money was collected from the businessmen for the applicant (page 8), that “[the applicant] had been introduced [to them] as a leader of the criminal group” (page 8), and that the victims “had paid mobile telephone bills for [the applicant]” (page 8). The District Court also examined information on the telephone communications of Mr M. and the applicant and referred to them in its judgments (without, however, indicating their importance for the conviction). 34. The applicant’s case was heard by Judge K. of the Nikulinskiy District Court (the same judge who had earlier presided over the trial in the case of Mr M.). The first hearing on the merits took place on 29 September 2003. 35. The applicant pleaded not guilty. He did not deny that he knew the victims and that he had had some dealings with them. Namely, he confirmed that he had met with them several times between 1996 and 1999. However, he denied that his involvement in their business had been of a criminal character. He also denied having received from the victims or from Mr M. any criminal payments. He further denied the participation of Mr M., his brother, in any criminal activity. 36. At the following hearings the court heard testimony of two witnesses for the defence, R. and K., who both denied any involvement of the applicant or Mr M. in the crimes. They testified that the money had been paid by the victims to Mr M. as a rental fee for storage space on premises owned by the applicant. 37. The victims (Mr D. and his two partners), on the contrary, testified that in 1996 they had met with the applicant who had offered them criminal “protection” from other gangs and fixed a monthly fee for it. At one of the meetings with the applicant another gangster had threatened the victims with beatings. In the following years the victims had been paying the money to the gang, generally not to the applicant directly but to other gangsters, in particular to Mr M. However, the victims had understood that the money had been destined for the applicant. The victims had had several other meetings with the applicant in different places where the amount of the monthly fee had been discussed. Other members of the gang had always referred to the applicant as a person of authority. Throughout that period the applicant had been personally involved in the negotiations with other gangs. 38. The court also examined audio records secretly made by one of the victims and later by the police during the surveillance operation. Although the applicant was not identified as one of the speakers on those audio records, other gangsters had often referred to somebody named Tengiz (which is the applicant’s first name) who had supposedly been a person of authority within the gang. The applicant claimed that they had probably meant another person also named Tengiz. 39. The District Court also examined other evidence. Witness V. confirmed that several meetings between the applicant and the victims had taken place. Witness Ya., an accountant for the victims, confirmed that one of the alleged members of the applicant’s gang had been formally employed by the victims and had been receiving a salary, without, however, doing any actual work. She did not know about any official business transactions or rental agreements between the applicant and the victims. The prosecution also produced the applicant’s and other members of the gang’s telephone bills which had been paid by the victims, and some other circumstantial evidence. 40. During the court proceedings in the applicant’s case the defence requested that Mr M. be summoned. He explained to the courts that Mr M.’s testimony was important. The applicant claimed that according to the victims the money obtained from them had been passed to him by Mr M. and that the examination of the latter “could shed light on these events”. The defence also alleged that without proving the fact that the money had been passed to the applicant he could not be found guilty and that Mr M. had to be summoned as all the witnesses referred to him in their testimony. The trial court rejected the request holding that the court had not yet assessed all the evidence. 41. Some time later the defence requested the admission in evidence of Mr M.’s written statement obtained by one of the defence lawyers who had visited Mr M. in prison and had interviewed him. In those statements Mr M. had denied his and his brother’s (the applicant) involvement in the gang. The court refused on the ground that the written statement of Mr M. had not been “duly certified” and it was unclear whether that statement had indeed been taken from Mr M. 42. The defence also requested leave to examine the victims of the impugned extortion for a second time, owing to inconsistencies in their earlier submissions. The request was not granted. 43. At some point in the proceedings the defence challenged the judge claiming that she was not impartial. They contended that the same judge had earlier found the applicant’s brother guilty in a case closely connected with the applicant’s case. Moreover, the defence noted that the trial judge was the same judge who had earlier remitted the case to the prosecutor and might therefore have been prejudiced in this case. However, the judge refused to withdraw. On several later occasions the defence objected to questions put by the judge to the applicant, claiming that those questions were favourable to the prosecution. 44. It took the trial court eight hearings to examine the evidence produced by the parties. The hearings took place on 29 and 30 September, and on 1, 2, 7, 14 and 15 October 2003. The last hearing on the merits was held on 16 October 2003. On that day the court heard the last witness, examined certain written materials in the case file and examined the requests of the defence. The judge, having decided that the examination of evidence was over, invited the parties to proceed with their final submissions. The defence objected to ending the examination of the evidence without summoning Mr M. The objection was rejected. The defence then requested an adjournment for at least one day to prepare their final submissions. The judge ordered a twenty-minute break and then proceeded to the final submissions. These were made after a thirty-minute break. All three lawyers for the applicant were able to make oral submissions, in addition to their written submissions which they had handed to the court. 45. On 21 October 2003 the District Court found the applicant guilty of extortion and sentenced him to seven years’ imprisonment and confiscation of criminally obtained assets. In the opening paragraphs of the judgment the District Court found that the applicant and his brother, Mr M., who had earlier been convicted by the same court on 27 December 2002, as well as several other unidentified people, were members of an organised criminal group created to extort large sums of money from local businessmen. Between 1996 and 1998 the applicant had met with those businessmen on several occasions. He had offered them protection from other gangs in exchange for a monthly fee. The money had usually been passed from the victims to the applicant through other members of the group, including the applicant’s brother, Mr M. In addition, the victims had been required to pay an unidentified member of the gang’s telephone bills and later those of the applicant himself. The judgment contained a detailed account of all payments which had passed through Mr M. to the applicant and of the amounts of the telephone bills paid by the victims. It also described several episodes when unidentified members of the gang had claimed additional payments on the applicant’s behalf. 46. The court further analysed the testimony of witnesses R. and K. examined at the request of the defence. The judge noted that although both R. and K. had referred to the existence of a rental agreement between the victims and the applicant, it had allegedly been concluded in the name of a firm which had ceased to exist by that time and had never been signed by the applicant. Furthermore, the court did not have a copy of that agreement and other evidence in the case file contradicted the submissions of R. and K. Lastly, in a telephone conversation between one of the victims and a member of the gang, the latter had instructed the former to tell the police that the payments had been made within a rental agreement. As a result, the judge dismissed the testimony of R. and K. as unreliable. 47. The applicant’s lawyers appealed. In particular, they drew the court’s attention to the fact that at the trial the victims had acknowledged that they had been giving the money not to the applicant but to other persons. The applicant’s lawyers insisted that the trial court’s failure to summon and question Mr M. made the trial unfair. 48. On 17 March 2004 the Moscow City Court examined the appeal by the defence. It amended the judgment of the District Court because of changes in the Russian Criminal Law. The confiscation order in respect of criminally obtained assets was thus quashed. However, the remainder of the judgment of 21 October 2003 was upheld. 49. After arrest the suspect can be placed in custody “pending investigation”. Article 108 §§ 1, 3-6 of the new CCrP (of 2001, in force since 1 July 2002) requires a judicial decision by a district court on a reasoned request for detention by a prosecutor, supported by appropriate evidence, before a defendant can be detained or his or her detention extended. Detention “pending investigation” should not exceed eighteen months (Article 109 §§ 1-3). The period of detention “pending investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9). 50. From the time the prosecutor sends the case to the trial court, the defendant’s detention is “pending trial”. Upon receipt of the case file the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 228 § 3 and 231 § 2 (6) of the CCrP). 51. The period of detention “pending trial” is calculated up to the date on which 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 of the CCrP). 52. The trial judge can return the case to the prosecutor to remedy the defects impeding the trial (Article 236 § 1 (2) of the CCrP), for instance if the judge has identified serious deficiencies in the bill of indictment (Article 237 § 1 (1) of the CCrP) or a copy of it was not served on the accused. The judge must require that the prosecutor comply within five days (Article 237 § 2) and must also decide on a preventive measure in respect of the accused (Article 237 § 3). 53. By Federal Law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge could extend the term of detention with due regard to the time-limits set forth in Article 109 of the CCrP. 54. Pursuant to Article 376 of the CCrP, the court of appeal has to set the date, time and place of an appeal hearing and inform the parties accordingly. The parties should be informed no less than fourteen days in advance of the date of the appeal hearing. The court has to decide whether or not the detainee should be brought to the court of appeal in person. That Article also regulates the arrangements governing a detainee’s appearance in appeal proceedings in person and his or her appearance via video-link. 55. For further details concerning Russian legislation on pre-trial detention, detention pending trial and remittal of the case to the prosecution for correcting defects of the bill of indictment, see the cases of Lebedev v. Russia (no. 4493/04, §§ 33 et seq., 25 October 2007) and Shteyn (Stein) v. Russia (no. 23691/06, §§ 56 et seq., 18 June 2009). 56. Article 90 of the CCrP provides that “factual circumstances established in a court judgment ... which have acquired legal force, should be accepted by a court ... without additional verification. However, such a court judgment cannot predetermine the question of guilt of those persons who had not participated in [those] proceedings”. 57. Articles 61 – 63 of the CCrP describe situations in which a judge cannot sit on the bench in a particular case. The judge must withdraw if he is an injured party in that criminal case, if he has already participated in that criminal case in a different capacity (for example, as a representative of a party, as a witness, etc.), if he is a relative of any participant in the criminal proceedings, or “if there are other circumstances which give reason to believe that [the judge] is personally, directly or indirectly, interested in the outcome of the criminal case”. The judge whose impartiality is in doubt must withdraw of his own motion (Article 62 § 1); alternatively, a party to the proceedings may challenge a judge on those grounds (Article 62 § 2). Article 63 of the CCrP provides that the same judge cannot sit on the bench in the trial court and later in the court of appeal or in the supervisory review court in the same case. The same judge who sat on the bench during the first trial cannot remain in the composition if the case is remitted for re-trial. However, there are no rules governing the participation of the same judge in different, yet related, criminal cases.