CASE OF PANCHENKO v. RUSSIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Non-pecuniary damage - financial award
Nicolas Bratza
9. The applicant was born in 1962 and lives in St. Petersburg. 10. On 29 August 1995 the North-Western transport prosecutor’s office instituted criminal proceedings against several police officers of the St. Petersburg transport police department where the applicant, in the rank of police major at that time, held the position of senior operational officer. The investigation established that the applicant had colluded with other police officers to detain individuals who had just arrived in St. Petersburg on the pretext of an identity check and to misappropriate their money. 11. On 31 August 1995 the applicant was detained on remand. 12. On 7 September 1995 the applicant was charged with criminal offences under Articles 144 § 2 (concerted theft), 145 § 3 (concerted large-scale robbery), 148 § 3 (large-scale extortion) and 170 § 1 (abuse of power or office) of the RSFSR Criminal Code, committed on several occasions between 1992 and 1995, in collusion with two other police officers. 13. On 18 June 1996 the case was referred to the Smolninskiy District Court of St. Petersburg for trial. 14. On 9 October 1996 the Smolninskiy District Court found that the bill of indictment was incomplete and remitted the case to the prosecutor’s office for additional investigation. 15. On 24 December 1996 the St. Petersburg City Court quashed the decision of 9 October 1996 and remitted the case to the Smolninskiy District Court for examination on the merits. 16. On 24 February, 31 March and 15 September 1997 the Smolninskiy District Court dismissed the applicant’s requests for release from custody, each time referring generically to the gravity of the charges against him and to his personal characteristics. 17. According to the Government, on 10 February 1997 the applicant refused to go to the court and the hearing was adjourned until 24 February. The applicant refuted the allegation. He contended that as a detainee he had had no choice whether to be escorted to the court house or not. 18. The parties agreed that subsequent hearings had been held on 24 and 25 February, 31 March and 1 April 1997. 19. On 15 September 1997 the Smolninskiy District Court granted the applicant’s request for additional time to read the case file and transcripts of the court hearings. The Government alleged that at that hearing the applicant had prevented the court from examining witnesses and victims, falsely accusing them of criminal offences and perjury. The applicant contested this allegation as not supported by any documents. The next hearing was fixed for 11 December 1997. 20. On 11 or 22 December 1997 the applicant challenged the presiding judge, alleging that he had had an intimate relationship with her. The challenge was dismissed as unsubstantiated. The hearing was then adjourned until 9 February 1998 because the applicant fell ill. 21. Subsequent hearings in the Smolninskiy District Court took place on 9, 11 and 12 February 1998. 22. On 12 February 1998 (8 February, according to the Government) the Smolninskiy District Court suspended the proceedings and ordered a forensic psychiatric examination of the applicant. 23. On 5 May 1998 the Convention entered into force in respect of the Russian Federation. 24. On 22 May 1998 the experts found the applicant to be of sound mind at the time of examination and at the time when the incriminated acts had been committed. On 1 July 1998 the proceedings were resumed. 25. On 17 July 1998 the Smolninskiy District Court refused the applicant’s request for release from custody, finding that his placement in custody had been “imposed in accordance with the law” and that “at this stage of the proceedings (the court investigation is about to be finished)... a change of the preventive measure is not opportune (нецелесообразно)”. 26. On the same day the Smolninskiy District Court delivered a judgment in the applicant’s case. It found him guilty on most counts and sentenced him to six years’ imprisonment, including the time already served, and also ordered confiscation of his property. 27. The applicant appealed against the judgment to the St. Petersburg City Court. 28. On 26 October 1998 the Smolninskiy District Court advised the applicant that the appeal hearing would take place on 17 November 1998. However, on 11 November 1998 (29 October, according to the Government) the St. Petersburg City Court returned the case-file to the Smolninskiy District Court because the applicant had not had adequate time and facilities to study it after the judgment had been given. 29. The Government submitted that between November 1998 and January 1999 the Smolninskiy District Court had “taken measures” to examine the applicant’s requests. They did not provide any details about the nature of these measures. The applicant disagreed. He contended that during that period the Smolninskiy District Court had not taken any steps to grant him access to the file and that it had not decided on his requests. He indicated that he had been first granted access to the requested materials on 22 February 1999, after seven months of procrastination on the part of the court, and then he had only had access to the file for 21 non-consecutive days until 8 April 1999. 30. On 18 April 1999 the applicant filed an addendum to his points of appeal. The appeal hearing was listed for 11 May 1999, but later adjourned until 3 June. 31. On 3 June 1999 the St. Petersburg City Court quashed the judgment of 17 July 1998 on procedural grounds and remitted the case for a new examination. The court ruled that the applicant was to remain in custody pending trial, without giving any reasons for the continued detention. On the same day the City Court issued a “special finding” (частное определение) acknowledging that the length of the trial had been excessive and ordered the President of the Smolninskiy District Court to pay special attention to this fact and to take measures to remedy the situation. 32. On 26 July 1999 the Smolninskiy District Court examined the prosecutor’s application to return the case for additional investigation to the North-Western transport prosecutor’s office in order to remedy certain procedural defects. The applicant and his counsel agreed with the prosecutor’s application and filed a request for the applicant’s release, arguing that there were no grounds justifying his continued detention. 33. The court granted the application and remitted the case for additional investigation, but refused the request for release on the following grounds: the applicant’s detention had been extended in accordance with the law, he was charged with a serious criminal offence and he could obstruct the additional investigation and trial or flee from justice, including by leaving Russia. 34. On 29 July and 1 August 1999 the applicant and his lawyer lodged appeals against the decision of the Smolninskiy District Court. 35. According to the Government, the St. Petersburg City Court had originally fixed the hearing date for 24 August 1999. However, the applicant’s lawyer failed to appear and the hearing was adjourned until 31 August. On 31 August 1999 the applicant informed the court that his lawyer was on leave and requested an adjournment of the hearing. His request was granted and the new date was fixed for 28 September 1999. It appears that on 28 September 1999 the hearing before the St. Petersburg City Court took place. According to the Government, the court established that it needed the materials in the case file that was at that time in the North-Western transport prosecutor’s office pending completion of the additional investigation. The proceedings were suspended until such time as the case file was made available to the court. 36. On 21 September 1999 the North-Western transport prosecutor’s office accepted the case for an additional investigation. On 28 September 1999 the acting North-Western transport prosecutor set a time-limit for the additional investigation and extended the applicant’s detention for one month, i.e. until 28 October 1999. 37. On 18 October 1999 the Smolninskiy District Court informed the applicant that his case-file was with the North-Western transport prosecutor’s office for an additional investigation. 38. On 19 October 1999 the applicant complained to the prosecutor’s office that the re-opening of investigation had been unlawful because his appeal against the decision of 26 July 1999 was still pending. 39. On 26 October 1999 the North-Western transport prosecutor’s office reversed the decision of 28 September 1999 on the ground that the court decision of 26 July 1999 had not yet become final and the appeal was pending. On the same day the case-file was forwarded to the Smolninskiy District Court to be joined with the appeal and sent to the St. Petersburg City Court. 40. On 2 November 1999 the St. Petersburg City Court upheld the decision of 26 July 1999, finding as follows: “The [city court] does not see any substantial violations of the requirements of the RSFSR Code on Criminal Procedure [“CCrP”] during the examination, by the [district] court, of the issues related to the preventive measure imposed on [the applicant], adjournment of hearings, examination of applications for release and appointment of an expert study... Judging from the case materials, the [district] court had no grounds to revoke or amend the preventive measure... The norms of the CCrP... do not provide for any time-limits for detention on remand pending trial; they regulate the time-limits for fixing the first hearing and beginning of the trial, yet non-compliance with these time-limits is not an unconditional ground for revoking the preventive measure... The [city court] comes to the conclusion that during the preliminary investigation and trial, there were no violations of the rules of criminal procedure as regards the examination of issues related to the preventive measure. When remitting the case for additional investigation and deciding on the preventive measure, [the district court] correctly referred to the absence of any grounds for revoking the preventive measure, taking into account that, once released, [the applicant] could abscond or interfere with the additional investigation or judicial examination; [the district court] correctly had regard to [the applicant’s] personality and to the nature of the charges against him.” 41. On 17 November 1999 the North-Western transport prosecutor’s office accepted the case for investigation and requested an extension of the applicant’s detention. The request was granted by the acting North-Western transport prosecutor on the same day, for a period of one month, i.e. until 17 December 1999. 42. The applicant appealed against the extension order. He argued, in particular, that it had been the second time that his detention in connection with the additional investigation had been extended for one month. 43. On 26 November 1999 the Oktyabrskiy Court of the Admiralteyskiy District of St. Petersburg upheld the order of 17 November 1999, finding as follows: “Article 96 § 2 of the CCrP provides that persons charged with serious criminal offences may be detained on remand on the sole ground of the dangerousness of the offence. Furthermore, for an extension of [the applicant’s] detention on remand, there are of relevance such grounds as the defendant’s potential to free from investigation or trial and to interfere with the establishment of the truth”. 44. On 17 December 1999 the bill of indictment was served on the applicant and his lawyer and they were given several hours to study the materials of the additional investigation. On the same day a prosecutor of the North-Western transport prosecutor’s office refused the applicant’s requests for release pending trial and for additional time to study the case-file. 45. On 20 December 1999 the case was referred to the Smolninskiy District Court for trial. 46. On 30 December 1999 the Smolninskiy District Court again remitted the case to the prosecutor’s office for additional investigation because the prosecutor had failed to respect the applicant’s right to study all of the case materials and not just new ones. The court confirmed that the applicant was to remain in custody. The court grounded the applicant’s detention as before: the applicant was charged with a serious criminal offence and, in view of his personal circumstances, he could obstruct the investigation or flee from justice, including by leaving Russia. The applicant appealed against this decision. 47. On 29 February 2000 the St. Petersburg City Court quashed the decision of 30 December 1999 and ordered the applicant’s release from custody against his undertaking not to leave the city. The court noted that the applicant had already spent more than four years in custody while procedural delays in the examination of the case could not be attributed to his conduct. The court noted that the applicant had a permanent residence and family, that he had received positive references at his former place of work, that he had no criminal record and that there were no indications that the applicant would abscond or interfere with the establishment of the truth. On the same day the court also quashed the decision of the Oktyabrskiy District Court of 26 November 1999 and remitted the matter for a new examination because of a procedural defect in the trial record. 48. On or about 29 February 2000 the applicant was released from custody. 49. It appears that on 6 March 2000 the North-Western transport prosecutor’s office accepted the case for an additional investigation ordered by the Smolninskiy District Court on 30 December 1999. The investigation was completed on 23 August 2000 and the case was referred to the trial court. 50. On 5 April 2000 a prosecutor with the North-Western transport prosecutor’s office granted the applicant permission to pay a visit to his parents in Kharkov, Ukraine, from 6 to 11 April 2000. 51. On 13 April 2000 the Oktyabrskiy Court examined the applicant’s complaint concerning the lawfulness of his detention after 21 September 1999. The applicant supplemented his initial complaint with a request to declare inadmissible all evidence obtained by the investigation between 21 September and 26 October 1999 and between 17 November and 20 December 1999. The court held that the order of the prosecutor’s office of 26 October 1999, by which the order of 28 September 1999 had been reversed, amounted to an admission of the fact that the investigation between 21 September and 26 October 1999 had been unlawful. As to the admissibility of evidence obtained during that period, the court referred this issue to the trial court. 52. On 22 August 2000 the North-Western transport prosecutor’s office gave the applicant a new permit to visit his parents in Kharkov, Ukraine, provided that he returned by 30 August 2000. 53. On 10 January 2001 the Smolninskiy District Court, at the applicant’s request, ordered the case to be remitted for an additional investigation. The court established that the applicant had not been given adequate time to have access to the case file and that the investigator had failed to decide on his requests. The court referred the remainder of the applicant’s complaints concerning admissibility of evidence to the trial court. Following the appeal of the North-Western transport prosecutor against the decision, on 13 February 2001 it was upheld by the St. Petersburg City Court. 54. It appears that at that time the North-Western transport prosecutor’s office was undergoing reorganisation and its staff were transferred to the St. Petersburg city prosecutor’s office. On 26 March 2001 the applicant was advised about a transfer of his case to the St. Petersburg city prosecutor’s office. On 19 April 2001 a senior investigator with the anti-corruption and economic crimes unit of the Department for especially important cases of the St. Petersburg prosecutor’s office accepted the case for the additional investigation. 55. On the same day a deputy prosecutor of St. Petersburg authorised an extension of the investigation for one additional month. 56. On 11 May 2001 a deputy Prosecutor General authorised a further extension until 19 July 2001, i.e. for a total of 13 months and 23 days. 57. On 17 July 2001 the first deputy Prosecutor General extended the investigation until 19 September 2001, i.e. for a total of 15 months and 23 days. 58. On 18 September 2001 the first deputy Prosecutor General authorised an extension until 19 November 2001, i.e. for a total of 19 months and 23 days. 59. The applicant’s lawyer challenged the orders extending the investigation, in court. He complained about the excessive length of the proceedings and contested the lawfulness of the extensions, alleging that the case was of average complexity and that there were no exceptional circumstances of the kind required by the domestic law to justify such a lengthy investigation. He also requested the court to find a violation of Article 6 § 1 of the Convention in that the applicant had been denied a fair trial within a reasonable time. 60. On 22 October 2001 the Oktyabrskiy Court rejected the complaint. On 27 November 2001 the St. Petersburg City Court, on the applicant’s appeal, quashed and remitted that decision for a new examination. The court found that the first instance court had failed to take into account certain periods of the pre-trial investigation. 61. On 18 May 2002 the Oktyabrskiy Court examined the matter de novo and dismissed the complaint again. As regards the authorities’ compliance with the “reasonable time” requirement, the court pronounced as follows: “...Having regard to the fact that the court has not established any violations of the rules of criminal procedure in the extensions of the time-limit for the preliminary investigation to 13 months and 23 days, 15 months and 23 days, and 17 months and 23 days, and taking into account that the contested extension orders were justified, the court considers that the extensions of the said time-limits were lawful and justified. In this connection, the court also considers that the additional investigation was completed within a reasonable time because the additional investigation was needed and it did not violate the defendant’s right under Article 6 § 1 of the ECHR... This conclusion of the court is also grounded on the fact that the overall duration of the preliminary investigation was 17 months and 23 days, of which seven months were used for an additional investigation by the St. Petersburg prosecutor’s office. The latter time period, as established in the court hearing, was required to carry out many investigative actions in the light of the substantial size of the criminal case, the remoteness [in time] of the criminal offences and the extent of the charges, and it was reasonable and necessary for the establishment of the truth and, in particular, for the protection of the victims’ rights.” 62. On 10 September 2002 the St. Petersburg City Court, on the applicant’s appeal, upheld the decision of 18 May 2002. 63. On 27 September 2001 the applicant was charged with repeated and concerted bribery, fraud, theft, robbery, abuse of power, and document forgery. In particular, the applicant was accused of illegal detention of persons whom he had stopped for identity checks at the railway station, taking or stealing their money and valuables and using forged documents to obtain social benefits. On 19 October 2001 the bill of indictment, with some textual amendments, was served again on the applicant. 64. Subsequently the applicant was given access to the case file. It appears the applicant and his lawyer had access to the case file for the first time on 5 November 2001. 65. On 11 April 2002 an investigator with the St. Petersburg city prosecutor’s office established that the applicant had intentionally procrastinated in reading the file and ordered that the reading should be completed by 1 June 2002. On 3 June 2002 the investigator refused the applicant’s request for additional time for access to the file. 66. On 17 June 2002 the case file comprising 20 volumes was forwarded to the St. Petersburg City Court for trial. 67. In July-August 2002 the judge to whom the case had been assigned went on annual leave. 68. On 30 October 2002 the judge fixed the first preliminary hearing for 18 November 2002. 69. On 26 November 2002 the court discontinued the criminal proceedings in the part concerning the charges in respect of which the prosecution had become time-barred and declared some evidence inadmissible. The applicant was afforded two months to study the case-file. The next hearing was fixed for 27 January 2003. 70. On 27 January 2003 the hearing was adjourned to 17 February 2003 because victims and witnesses did not appear. Between 17 February and 22 September 2003 further hearings were scheduled and adjourned for various reasons, such as the counsel’s medical treatment and annual leave, and absence of witnesses. From 22 July to 12 September 2003 the applicant was on annual leave in Kharkov and Khost. 71. On 22 September 2003 the proceedings were stayed pending the applicant’s in-patient treatment. Following his convalescence, a hearing was fixed for 24 December 2003. On that day it was adjourned until 5 January 2004 at the requests by the prosecutor and the applicant’s lawyer. 72. On 5 January 2004 the court discontinued the proceedings in respect of certain other charges which had meanwhile become time-barred. Between 9 January and 4 February 2004 further hearings were held. 73. On 4 February 2004 the St. Petersburg City Court made a decision to close the criminal case against the applicant (постановление о прекращении уголовного дела). Several charges against him were dropped by the prosecution and, as to the remainder, the court established that the prosecution was time-barred. The decision was not appealed against and on 17 February 2004 it became final. 74. The Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (“the old Code”) of 27 October 1960 (effective until 30 June 2002) listed as “preventive measures”, inter alia, an undertaking not to leave a specified place and placement in custody (Article 89). 75. A decision to order detention on remand could only be taken by a prosecutor or a court (Articles 11, 89 and 96). In making this decision the relevant authority was to consider whether there were “sufficient grounds to believe” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re-offend (Article 89), as well as to take into account the gravity of the charge, information on the personality of the accused, his (her) profession, age, state of health, family status and other circumstances (Article 91). 76. Until 14 March 2001, detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year’s imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the Code was amended to provide for placement in custody if the charge carried a sentence of at least two years’ imprisonment or if the defendant had previously defaulted or if he had no permanent residence in Russia or if his identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted the defendant’s placement in custody on the sole ground of dangerousness of the criminal offence imputed to him. 77. A prosecutor’s order, or a court decision, ordering detention on remand was to be reasoned and justified (Article 92). The accused was to be informed of the detention order and to have explained the procedure for lodging an appeal against it (Article 92). 78. The Code distinguished between two types of detention on remand: one was “pending the investigation”, i.e. when an authorised agency – the police or a prosecutor’s office – undertook investigative measures, and the other was “before the court” (or “pending the trial”), i.e. when a trial court examined the case. Although there was no difference in practice between them (the detainee was normally held in the same detention facility), the calculation of the time-limits was different. 79. After arrest the person was placed in custody “pending the investigation”. The maximum permitted period of the detention “pending the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels, up to the Prosecutor General of the Russian Federation. No extensions beyond eighteen months were permitted (Article 97). 80. The time-limit of detention “pending the investigation” was calculated until the day when the investigation was considered completed and the defendant was given access to the case file (Articles 97, 199, 200 and 201). The access was to be granted no later than one month before the authorised detention period expired (Article 97). If the defendant needed additional time to study the case-file, a judge acting on a request by a prosecutor could grant an extension of the defendant’s detention on remand until such time as the reading of the file was completed, but for no longer than six months. 81. The case could also be remitted for “additional investigation” by the trial court if it established procedural defects that could not be remedied during the trial. In such case the person’s detention was again “pending the investigation” and the running of the time-limits “pending the investigation” resumed. If, however, the case was remitted for additional investigation, but the investigators had already used up all the time authorised for the detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the day he received the case. Any subsequent extension could only be granted if the detention “pending the investigation” had not exceeded eighteen months. 82. Once the investigation was considered to be complete and the defendant had received the bill of indictment and finished reading the case file, the file was transferred to a trial court. From that day the defendant’s detention was “before the court” (or “pending the trial”). Until 14 March 2001 the Code set no time-limit for detention “pending the trial”. 83. The detainee or his (her) counsel or representative could challenge the detention order, and any subsequent extension order, in court (Article 2201). The judge was required to review the lawfulness and justification of a detention or extension order no later than three days after receipt of the relevant materials. The review was to be conducted in camera in the presence of a prosecutor and the detainee’s counsel or representative. The detainee was to be summoned and a review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his own initiative. The judge could either dismiss the challenge or revoke the detention on remand and order the detainee’s release. A judge’s decision was to be reasoned (Article 2202). 84. After a judge received the case-file and before the trial began, the judge had to decide, in particular, whether the defendant was to stay in custody or to be released pending trial (Article 222 § 5) and to rule on the defendant’s application for release, if submitted (Article 223). If the application was refused, it could be re-introduced after the beginning of the trial (Article 223). 85. At any moment during the trial the court could order, amend or revoke any preventive measure, including detention on remand (Article 260). Such decision was to be delivered in the form of a procedural order signed by all judges on the bench (Article 261). 86. Pursuant to the ruling of the Constitutional Court of 2 July 1998, all procedural orders made during the trial and having the effect of extending the applicant’s detention on remand could be appealed against to a higher court, separately from the judgment on the merits. 87. The time-limits for examination of the appeal against the procedural order rejecting the application for release were the same as those established for appeals against the judgment (see § 89 below) (Article 331 in fine). 88. The case examination was required to start no later than fourteen days after the judge issued a procedural order fixing a hearing date (Articles 2231 and 239). The duration of the trial was not limited in time. 89. The appeal court was required to examine an appeal against the first-instance judgment within ten days upon its receipt. In exceptional circumstances or in complex cases or in proceedings before the Supreme Court of the Russian Federation this time-limit could be longer, up to two months (Article 333). No possibility of further extensions was provided for.