CASE OF NAIMDZHON YAKUBOV v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1973 and prior to his arrest lived in Moscow. 6. On 30 June 2004 the applicant was arrested on suspicion of drug dealing as a result of an undercover police operation. On an unspecified date the Podolskiy Town Court of the Moscow Region (“the Town Court”) remanded him in custody. He remained in detention pending the investigation and trial. 7. On 11 March 2005 the Town Court found the applicant and his co-defendant B., also a Tajikistani national, guilty as charged. The applicant was sentenced to fourteen and a half years’ imprisonment. 8. On 25 April 2005 the Moscow Regional Court (“the Regional Court”) quashed his conviction on appeal and remitted the matter to the Town Court for fresh consideration. The Regional Court noted that, in contravention of the rules of criminal procedure, the indictment had been prepared by a prosecutor who had been the spouse of one of the police officers taking part in the undercover operation leading to the applicant’s arrest and had testified as a prosecution witness. As regards the applicant’s detention, the court ruled as follows: “Regard being had to the gravity of the charges against the defendants, their foreign nationality and illegal residence in the Russian Federation, [the court] does not consider it possible to lift the preventive measure pending trial applied and ... extends their detention.” 9. On 14 June 2005 the Town Court extended the applicant’s pre-trial detention until 8 November 2005. On 29 August 2005 the Regional Court upheld the relevant court order on appeal, noting as follows: “When deciding on the preventive measure, the [trial] court legitimately referred to the gravity of the charges and the [defendants’] characters ... It further legitimately indicated that there were no grounds for the defendants’ release. If at large [the defendants], in view of the gravity of the charges, might abscond, continue criminal activities, put pressure on witnesses, or otherwise interfere with the administration of justice.” 10. It appears that the applicant remained in custody pending consideration of the criminal charges against him. 11. On 9 December 2005 the Town Court found him guilty of drug dealing and sentenced him to eleven years’ imprisonment. 12. On 17 April 2006 the Regional Court upheld the conviction on appeal. 13. On 26 September 2006 the Regional Court granted the prosecutor’s request for a supervisory review of the applicant’s conviction, noting that the charges against him had not been classified in accordance with the law. 14. On 14 February 2007 the Presidium of the Regional Court quashed the appeal judgment of 17 April 2006 by way of supervisory review and remitted the matter to the appellate court for fresh consideration. 15. On 16 April 2007 the Regional Court quashed the applicant’s conviction of 9 December 2005 and remitted the matter for a retrial. It further noted that the preventive measure applied in respect of him and his co-defendant should remain unchanged. 16. On an unspecified date the Town Court extended the applicant’s detention until 27 July 2007. 17. On 25 July 2007 it authorised his detention for a further period until 27 October 2007, noting as follows: “When deciding the issue of extending the [defendants’] pre-trial detention and accepting the prosecutor’s argument, [the court] considers that there are no grounds for changing the preventive measure. Regard being had to the gravity of the charges against [the defendants], their foreign nationality and illegal residence in the Russian Federation, the court considers it impossible to lift the [detention] earlier applied and extends it ... ” 18. On 25 September 2007 the Town Court returned the case file to the prosecutor to arrange for a translation of the indictment into the defendants’ mother tongue. As regards the defendants’ detention, the court reiterated verbatim its earlier reasoning of 25 July 2007, ordering that they be detained pending the return of the case file to the court. On 4 December 2007 the Regional Court upheld this decision on appeal. 19. On 25 December 2007 the applicant received the translation of the indictment. 20. On an unspecified date the Town Court received the case file, and on 10 January 2008 fixed the date for the hearing of the case for 23 January 2008. It authorised the applicant’s detention for the period from 27 October 2007 to 27 January 2008, reiterating the reasoning contained in the court orders of 25 July and 25 September 2007. On 18 March 2008 the Regional Court upheld the relevant decision on appeal. It considered that the applicant’s pre-trial detention had been extended in accordance with the his release pending trial. He and his lawyers had to attend the trial and were not present at the appeal hearing. The court appointed lawyer B. to represent him. The prosecutor was present and made submissions to the court. 21. On 23 January 2008 the Town Court admitted lawyer Sh. as the applicant’s defender and adjourned the hearing to provide him with the time necessary to study the case file. The court further extended the applicant’s detention until 27 April 2008. Its reasoning in that regard remained unchanged. It appears that the applicant did not appeal against the said court order. 22. On 4 February 2008 the Town Court returned the case file to the prosecutor for the reasons indicated by the Regional Court in the appeal judgment of 25 April 2005 (see paragraph 8 above). The prosecutor was given five days to bring the indictment in compliance with the applicable rules of criminal procedure. Lastly, the court noted, reiterating its earlier reasoning, that the applicant should remain in custody. 23. On 24 April 2008 the Regional Court adjourned the hearing of the applicant’s appeal against the detention order of 4 February 2008 as his lawyers failed to appear. As regards the pre-trial detention, the court noted as follows: “[The appellate court] considers it necessary to rule on the issue of the [defendants’, the fact that the appellate court will examine the issue of the defendants’ detention, and to ensure prompt consideration of the matter, [the court] considers it necessary to extend the [defendants’] detention for ten days, until 7 May 2008.” 24. On 6 May 2008 the Regional Court examined the applicant’s appeal against the detention order of 4 February 2008. It upheld the findings of the lower court as regards the lawfulness and reasons underlying his detention. At the same time the Regional Court, regard being had to the fact that the defendants had been detained for a long time, the gravity of the charges and their characters, considered it possible to release them on bail. The bail set for each of them was RUB 5,000,000. Lastly, the court ruled that, should they be unable to pay the bail, they would remain in custody until 7 June 2008. 25. According to the applicant, he was unable to pay the bail as he had insufficient funds. 26. On 6 and 7 June 2008 the Town Court held a preliminary hearing in camera. After giving the applicant four warnings for improper conduct, the judge had him removed from the courtroom. The hearing was then held in his absence. His lawyers were present and made submissions to the court. The court fixed the trial date for 17 June 2008. It further extended the applicant’s pre-trial detention until 7 September 2008, noting as follows: “When deciding the issue of extending the [defendants’] pre-trial detention and accepting the prosecutor’s argument, [the court] considers that there are no grounds for changing the preventive measure. Regard being had to the gravity of the charges against [the defendants], their foreign nationality, illegal residence in the Russian Federation and lack of permanent employment, the court considers it impossible to lift the [detention] applied and extends it ... .” 27. On 24 July 2008 the Regional Court upheld the decision of 7 June 2008 on appeal. The prosecutor was present and made submissions to the court. The applicant did not attend. He had to be present at the trial court examining the criminal case against him. The court considered the request filed by his lay defender Sh. to adjourn the hearing in view of his involvement in another set of proceedings but dismissed it. It appointed lawyer S. to represent the applicant, noting as follows: “Regard being had to the [applicant’s] failure to pay the bail in accordance with the appeal decision of 6 May 2008, the gravity of the charges infringing public health and morals that amounts to a serious violation of public policy in a society which ensures human rights guarantees and in which public health is of great value, the [applicant’s] foreign nationality, illegal residence in the Russian Federation, the court at first instance has lawfully found that, pursuant to the applicable legislation, the preventive measure applied [in respect of the applicant] is not excessive. It is justified by society’s response and the social consequences [of the crime]. Given that it is necessary to ensure the effective protection of society, the court considers a deprivation of liberty to be permitted.” 28. On 1 August 2008 the Town Court found the applicant guilty as charged and sentenced him to ten and a half years’ imprisonment. On 19 February 2009 the Regional Court upheld his conviction on appeal. 29. According to the Government, on 25 April 2013 the prosecutor lodged an appeal against the court order of 10 January 2008 and the appeal decision of 18 March 2008 arguing that the applicant’s detention from 27 October 2007 to 10 January 2008 had been unlawful. The Government did not inform the Court about the outcome of the hearing of the matter.