CASE OF SYARKEVICH v. RUSSIA
No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)
Alena Poláčková;Helen Keller;Pere Pastor Vilanova
4. The applicant was born in 1961 and lived until his arrest in the town of Yuzhno-Sakhalinsk, the Sakhalin Region. 5. On 3 April 2003 the applicant was apprehended in a flat with unregistered firearms in his possession. Four tied persons with traces of beatings, including Mr P., were discovered in a cloakroom of the flat. An investigator of the Sakhalin Regional police department drew up an arrest record. 6. On the following day the applicant’s detention on remand was authorised. A week later the applicant was charged with a number of crimes, including organisation and leadership of an armed gang, several counts of aggravated kidnapping, extortion, robbery and fraud, as well as illegal possession of firearms. 7. The applicant’s detention was further extended by the YuzhnoSakhalinsk Town Court and the Sakhalin Regional Court on thirteen occasions up until his conviction. When extending the applicant’s detention, the domestic courts referred to the particular gravity and quantity of the charges against him; complexity of the criminal investigation and difficulties of jury trial; the applicant’s liability to abscond, re-offend and interfere with the course of justice, given his personality and criminal record; significant volume of evidence presented by the defence during the trial. The courts also kept track of the course of the investigation and assessed investigative and operative measures planned by the prosecution, including arrests of the applicant’s accomplices (which were still at liberty or had absconded in breach of the measure of restraint imposed on them and had been put on the wanted persons’ list), complex expert examinations requiring participation of the applicant and the victims and examination of the case-file by the applicant and his accomplices. The applicant’s requests for release on bail, as well as his appeal complaints against the detention orders, were to no avail. 8. On 21 April 2004 the applicant and his lawyers started studying the case file materials comprising nineteen volumes, 200-300 pages long each. On 7 September 2004 the Town Court set a time-limit for studying, affording the applicant additional twenty working days to complete it. On 29 December 2004 the case was referred to the Regional Court for trial. 9. On 6 April 2006 the Regional Court, by a jury verdict, found the applicant and six of his accomplices guilty as charged. On 12 May 2006 the Regional Court, relying on the jury verdict, sentenced the applicant to twenty-one years’ imprisonment. 10. The applicant was found guilty, in particular, of an aggravated fraud, robbery, kidnapping and extortion in respect of Mr L., a businessman from the Moscow Region. The jury found that in May 2001 the applicant had approached Mr L. under the pretence of being a car salesman. The applicant had promised Mr L. to sell him a car for approximately 600,000 Russian roubles (RUB). However, after Mr L. had transferred the money to an account indicated by the applicant, the latter had disappeared. In October 2002 the applicant contacted Mr L., told him that he had just returned from Japan with his car and invited him to come to Sakhalin for it. On his arrival at the airport of Yuzhno-Sakhalinsk on 13 October 2002 Mr L. was met by Mr K., one of the applicant’s accomplices, and taken to the applicant’s country house where he was held until 6 November 2002, being subjected to beatings and extortion by the applicant and his gang. 11. Neither Mr K., nor Mr L. were heard in open court. Mr K. had been found dead in a remand prison cell before the trial commenced. As for Mr L., residing in the Moscow Region, the trial court attempted to secure his presence on several occasions by summoning him and ordering his escort to the court. In reply he informed the trial court about being unable to travel to Yuzhno-Sakhalinsk in view of his spinal disease and a medical contraindication to air travel. He submitted a number of documents in support, as well as a written notice in which he confirmed his pre-trial statements. Having regard to these circumstances, the trial court allowed the prosecution’s request to read out Mr L. and Mr K.’s statements incriminating the applicant, despite the latter’s objections. 12. The jury further established that in September and December 2002 and in March 2003 the applicant had organised an armed robbery and kidnapping of eight other victims, including Mr P. and had extorted a large sum of money in exchange for their freedom. Mr P. also was not heard in court as he was allegedly on vacation in Ukraine. Disregarding the applicant’s objections, the Regional Court read out Mr P.’s pre-trial statements against the applicant. 13. The applicant’s lawyer appealed against the judgment of the Regional Court, complaining, among other matters, about the decision to read out pre-trial statements by Mr L., Mr P. and Mr K. On 14 November 2007 the Supreme Court of the Russian Federation upheld the judgment of the Regional Court, noting that it had correctly considered that reasons for the witnesses’ absence had been extraordinary and that it had lawfully read out their pre-trial statements.