CASE OF ZHEREBIN v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
4. The applicant was born in 1983 and lives in Tula. 5. On 9 March 2009 the applicant was arrested on suspicion of a flagrant breach of public peace and order, committed in concert by an organised group. The events in question took place in December 2008. 6. On 10 March 2009 the Taganskiy District Court of Moscow remanded the applicant in custody during the investigation. In particular, the court noted as follows: “When deciding whether a preventive measure should be imposed, the court takes into consideration whether [the applicant] has been charged with a serious offence which entails a custodial sentence of up to seven years’ imprisonment. [The offence in question] was committed against public peace and public order. Further, the court takes into consideration the fact that, at the time of the arrest, [the applicant] did not reside in Moscow, did not reside at his registered address and, according to him, was staying at his friend’s place in the Moscow Region; and that he had applied for two years’ leave of absence from his studies at university. During that period he did not have a permanent place of residence and did not reside at his registered address. [The applicant] is not employed. The source of his income or means of subsistence for his family are not known. Earlier [the applicant] was found liable for administrative offences against public order and public safety. The court also takes into consideration the motive for and the specific circumstances of the offence with which [the applicant] has been charged. The perpetrators used improvised weapons and acted in an organised group during the late hours of the day. Regard being had to the circumstances described above, the court concludes that, if at large, [the applicant] may abscond or otherwise interfere with the administration of justice by, inter alia, putting pressure on [witnesses].” 7. On an unspecified date the applicant lodged an appeal against the decision of 10 March 2009. He argued that the District Court had failed to justify its decision to remand him in custody and had not considered the possibility of using a less restrictive preventive measure in his case. He further noted that there was no evidence that he had ever tried to put pressure on witnesses, to interfere with the administration of justice or to abscond. Lastly, he pointed out that he was residing at the address known to the authorities together with his wife, who was pregnant. 8. On 30 March 2009 the Moscow City Court found the decision of 10 March 2009 justified and upheld it on appeal. 9. On 27 April 2009 the District Court extended the applicant’s pre-trial detention until 15 June 2009. The court reasoned as follows: “As can be seen from the materials submitted to the court, [the applicant] is charged with a serious offence which carries a custodial sentence of up to seven years. The crime was committed in concert with other persons. Some of them have not been identified by the investigating authorities to date. The others have been arrested. [The applicant] was not residing at his registered address. He does not have a registered address in the Moscow Region. He is unemployed. Under Article 97 of the Code of Criminal Procedure, a preventive measure can be imposed if there is evidence that a defendant might abscond or interfere with the administration of justice in his case. Neither [the applicant] nor his lawyer presented evidence to show that the existence of such a risk could not be justified. Furthermore, it can be seen from the documents submitted to the court that there is a risk that [the applicant] might engage in unlawful acts as defined in the above-mentioned provision of the law, regard being had to the nature and seriousness of the offence with which he is charged, to and to his character ... Accordingly, the court concludes that the circumstances justifying the [applicant’s] remand in custody have not changed. There is no reason to change or lift the preventive measure imposed earlier. The statements of guarantee submitted by the [applicant’s] lawyer cannot be taken into consideration by the court because they were not submitted to the investigator or presented by the signatories in person. ... Some of the statements are not duly authorised and the court has doubts as to their authenticity.” 10. On 18 May 2009 the City Court upheld the decision of 27 April 2009 on appeal. 11. On 29 May 2009 the Zamoskvoretskiy District Court of Moscow scheduled the trial for 10 June 2009. The applicant argued against the extension of his pre-trial detention. He submitted that he was a student, that he was married and that his wife was pregnant. He further pointed out that the investigation in the case had already been completed and that he could not interfere with the administration of justice or put pressure on witnesses. He had no intention of doing so or of absconding. The court ruled that the applicant should remain in custody pending trial. In particular, the court stated as follows: “Having examined the prosecutor’s request to detain [the applicant and two other defendants] pending trial, the court grants it. It discerns no grounds on which to change the preventive measure imposed on the defendants, regard being had to the seriousness of the charges, the factual circumstances and the defendants’ character. In particular, G. and [the applicant] do not have a registered address in Moscow or the Moscow Region. They were not living at their registered address. They are unemployed. The circumstances underlying their remand in custody have not ceased to exist or changed. The fact that the investigation in the criminal case has been completed has no effect to the contrary. Regard being had to the foregoing, the court discerns no grounds on which to change the preventive measure imposed earlier on the defendants and apply a less restrictive measure, including the [applicant’s] release upon a statement of guarantee signed by a surety.” 12. On 24 June 2009 the applicant asked the District Court for release. He submitted that on 16 June 2009 his wife had given birth to their child. He also relied on the statements of guarantee submitted by his sureties. The court dismissed the applicant’s request noting as follows: “... the court considers that the request cannot be granted. The court discerns no circumstances that would allow it to change the preventive measure imposed on [the applicant], regard being had to the seriousness of the charges, the factual circumstances and his character. In particular, [the applicant] does not have a registered address in Moscow or the Moscow Region. He is unemployed. Nor was [he] residing at his registered address. The reasons justifying the [applicant’s] remand in custody have not ceased to exist or changed. ... the birth of his child has no effect to the contrary and cannot justify the decision to replace [pre-trial detention] with a less restrictive measure, including the [applicant’s] release upon a statement of guarantee signed by a surety.” 13. On 22 July 2009 the City Court upheld the decision of 29 May 2009 on appeal. 14. On 28 October 2009 the District Court found the applicant guilty as charged and sentenced him to four years’ imprisonment. 15. On 22 December 2009 the City Court upheld, in substance, the applicant’s conviction on appeal.