CASE OF YEGORYCHEV v. RUSSIA
Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law)
Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova
5. The applicant was born in 1968 and lives in Moscow. 6. On 14 June 2001 charges of fraud were brought against the applicant, and he signed a written undertaking not to leave his place of residence. Some of the applicant’s assets, specifically his flat, parking spaces and three cars, were frozen. 7. On 21 June 2001 the investigation of the criminal case against the applicant was terminated and he began examining the case file. 8. However, on 26 September 2001 the investigation resumed. 9. On 26 September 2001 the Prosecutor General’s Office of Russia decided that in view of the seriousness of the charges faced by the applicant, the risk of his absconding, as well as the necessity to “secure the enforcement of the conviction” the applicant should be placed in pre-trial detention. 10. On 28 September 2001 the applicant was remanded in custody and placed in a specialised detention facility at the Moscow Clinical Hospital no. 20 owing to a provisional diagnosis of acute myocardial infarction, arterial hypertension and an exacerbating duodenal ulcer. He stayed there until 20 November 2001, following which he was transferred to a remand prison. The attending doctor found the applicant fit to participate in the investigative actions. 11. In the meantime, on 8 October 2001 the investigation was completed and the applicant was informed that he could start to examine the case file. 12. On the same date the applicant brought an application for release. He argued that there was no indication that he would abscond or otherwise obstruct the administration of justice: the applicant had no criminal record; he had a family, a permanent job and a permanent place of residence, and he suffered from a number of chronic cardiovascular and surgical diseases; the choice of a custodial measure had thus not been justified. 13. On 24 October 2001 the Moscow Babushkinskiy District Court examined the applicant’s arguments with references to his medical documents, documents attesting to his family situation, his positive references from work, and the arguments by the investigator to the effect that the applicant had ignored the investigator’s summonses to appear on 22 and 25 July, 13 and 14 August and 24 September 2001 without giving reasons, that he had often been several hours late to appear before the investigator, that he could appear for fifteen minutes and then leave saying that nobody could tell him when to come and when to leave, and that throughout the summer, in the eyes of the investigator, the applicant had been out of contact. Having considered the reasons which prompted the choice of preventive measure, in particular, the seriousness of the charges against the applicant and his conduct during the pre-trial investigation, the District Court held that there were no grounds for releasing the applicant. 14. On 20 November 2001 the Moscow City Court upheld the above decision on appeal. 15. On 22 November 2001, 21 January and 9 April 2002 the Deputy Prosecutor General extended the applicant’s detention until 28 January, 28 April and 28 June 2002 respectively. 16. Meanwhile, on 15 January 2002 the forensic medical expert did not confirm the applicant’s medical diagnosis. 17. On 20 June 2002 the criminal case against the applicant was submitted to the Moscow Presnenskiy District Court for trial. 18. The Moscow Presnenskiy District Court repeatedly extended the applicant’s detention pending trial. Such extensions were granted upon the prosecutor’s request on 16 December 2002, 19 March, 23 June, 24 September, 23 December 2003 and 24 March 2004. On each occasion the District Court referred to the seriousness of the charges against the applicant and the risk of his absconding or otherwise obstructing justice, and the absence of grounds for changing the preventive measure imposed. Those decisions were upheld on appeal by the Moscow City Court on 21 January, 27 May, an unknown date and 3 December 2003, 23 March and 29 April 2004 respectively. 19. On 26 May 2004 the Moscow Presnenskiy District Court sitting in a bench composed of Judge F. (presiding judge), Ms Kh. and Ms Shch. (lay judges) convicted the applicant of fraud and sentenced him to seven years and six months’ imprisonment. The court further held that the civil claim against the applicant, as well as the question of lifting the restriction imposed on the applicant’s property, should be referred for consideration within the framework of the civil procedure. 20. The applicant appealed. He complained that, inter alia, the judgment had been given by a court whose composition had not been in accordance with law. In particular, he referred to the fact that the lay judges who participated in the examination of his case had at the same time been examining a criminal case against a certain Mr Tver. He also complained that the trial court had read out the testimonies of the majority of the witnesses for the prosecution, including testimonies by key prosecution witnesses, and had thus deprived him of the possibility of cross-examining them. This was despite the absence of any exceptional circumstances which had prevented the court from securing their attendance at the court hearing. 21. On 17 August 2004 the Moscow City Court reduced the sentence to six years and upheld the rest of the judgment on appeal. In reply to the applicant’s argument regarding the alleged unlawfulness of the composition of the trial court, the City Court held that the composition of the court had remained unchanged throughout the trial in accordance with Article 242 of the Code of Criminal Procedure, and that the participation of lay judges, who had also been involved in the examination of another case, had had no legal consequences and had not amounted to a violation of the law. The City Court further held that the reading out of the testimonies of certain witnesses had been carried out by the trial court on the request of the prosecutor and in compliance with the requirements of Article 281 of the Code of Criminal Procedure. 22. On 30 December 2004 the Presidium of the Moscow City Court, by way of supervisory review, modified the charges the applicant had been convicted on and reduced his sentence to five years six months’ imprisonment. 23. On 9 March 2005 the Sukhinichskiy District Court, Kaluga Region, ordered the applicant’s conditional early release.