FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1603/02 
by Sergey BROVCHENKO 
against Russia

The European Court of Human Rights (First Section), sitting on 1 June 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs N. Vajić
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
  and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 25 December 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Vasilyevich Brovchenko, is a Russian national who was born in 1963 and lives in Moscow. He is represented before the Court by Ms K. Kostromina, a lawyer practising in Moscow.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  First trial

On 19 May 1997 the applicant was arrested on suspicion of his involvement in drug dealing. His car was searched. According to the applicant, his personal effects and 300 US dollars disappeared from the car after the search.

On the same day the applicant was taken to the police station for examination where he was allegedly beaten up by the police officers.

The applicant was remanded in custody pending investigation.

On 18 December 1997 the Savelovskiy District Court of Moscow found the applicant guilty of drug dealing and sentenced him to nine years’ imprisonment. On 21 April 1998 the Moscow City Court upheld the conviction on appeal.

In May and June 1998 the applicant was transported from Moscow to a correctional facility in the Irkutsk Region where he was to serve his sentence.

2.  Second trial

On 3 March 1999 the Supreme Court of the Russian Federation quashed the judgments of 18 December 1997 and 21 April 1998, by way of supervisory review, and remitted the charges for fresh examination. The Supreme Court established, in particular, that the conviction had been premised on insufficient evidence and that the courts had failed to examine all of the relevant circumstances.

On 5 May 1999 the Savelovskiy District Court dismissed the applicant’s request for release, referring to the gravity of the charges and the risk that he would interfere with the investigation or abscond. The decision was issued in the absence of the parties.

On 17 May 1999 the applicant was transported to Moscow for a new trial.

On 25 May 1999 the applicant was placed at remand centre no. 48/3 in Moscow where he remained till 13 July 2000.

On 28 June 1999 the District Court dismissed a request for release lodged by the applicant’s counsel, reproducing verbatim the reasoning of the decision of 5 May 1999.

On 25 November 1999 the District Court disallowed the applicant’s appeals against the decisions of 5 May and 28 June 1999 on the ground they had been introduced outside the time-limit.

It appears that the District Court subsequently issued further extension orders, copies of which were not submitted to the Court.

On 9 March 2000 the District Court found the applicant guilty of drug dealing and sentenced him to nine years’ imprisonment.

On 27 June 2000 the Moscow City Court upheld the conviction on appeal.

On 13 July 2000 the applicant was transported from Moscow to the Irkutsk Region where he was to serve his sentence.

On 28 July 2000 he arrived at a correctional facility in the Irkutsk Region.

3.  Third trial

(a)  Quashing of the conviction

On 19 September 2002 the Presidium of the Moscow City Court quashed the judgments of 9 March and 27 June 2000 by way of supervisory review and remitted the charges for fresh examination. It noted, in particular, that the lower courts’ findings of fact were based on inconclusive and contradictory evidence. The court did not indicate whether the applicant should remain in custody or be released.

The applicant claimed that he had asked the Kuybyshevskiy District Court of Irkutsk to release him but received no response.

(b)  The applicant’s detention pending preparation for the third trial

On 17 October 2002 the Savelovskiy District Court scheduled the opening date of the trial and ordered that the applicant remain in custody. The applicant was neither present nor represented. On 5 December 2002 the Moscow City Court rejected the applicant’s appeal.

On 24 October 2002 the applicant was brought to Moscow for a new trial. On 11 November 2002 the applicant arrived at remand centre no. 77/2 where he remained until his release from custody on 12 January 2004.

On 13 March 2003 the applicant asked the Savelovskiy District Court for release. Citing the gravity of the charges and the need to secure enforcement of the future conviction, the court rejected his request. It also noted that there was no proof that the applicant would not abscond or would discontinue his criminal activities if released.

On 29 April 2003 the City Court upheld that decision on appeal. It noted that the circumstances had not changed since the applicant’s arrest and, accordingly, there was no ground for his release.

(c)  Extension of the applicant’s detention until 14 July 2003

On 26 March 2003 the applicant lodged a complaint alleging that his detention was unlawful and asked the court to release him.

On 14 April 2003 the Savelovskiy District Court granted the prosecutor’s request and extended the applicant’s detention until 14 July 2003. In the same decision it dismissed the applicant’s complaint of 26 March 2003. The court referred solely to the gravity of the charges against the applicant.

On 17 July 2003 the Moscow City Court upheld the decision of 14 April 2003 indicating that there were no circumstances calling for the applicant’s release.

On 9 June 2003 the District Court dismissed the applicant’s request for release.

(d)  Extension of the applicant’s detention until 14 October 2003

On 14 July 2003 the Savelovskiy District Court, on a request by a prosecutor, extended the applicant’s detention until 14 October 2003. It referred to the gravity of charges and to the applicant’s failure to submit evidence showing his permanent residence in Moscow.

On 11 September 2003 the Moscow City Court upheld the decision of 14 July 2003.

(e)  Extension of the applicant’s detention until 13 January 2004

On 13 October 2003 the Savelovskiy District Court granted the prosecutor’s request and extended the applicant’s detention until 13 January 2004. It noted the gravity of the charges and stated that there had been no new circumstances which would have rendered the applicant’s release possible.

On 17 November 2003 the Moscow City Court upheld the decision of 13 October 2003 on appeal, noting that the applicant was charged with a particularly serious offence and the criminal proceedings against him were still pending.

(f)  The applicant’s release from custody

On 12 January 2004 the Savelovskiy District Court dismissed the prosecutor’s request for a further extension of the applicant’s detention. The applicant was released but ordered to remain in town.

On 5 February 2004 the Moscow City Court upheld that decision.

It appears that the criminal proceedings are pending.

B.  Relevant domestic law

For a summary of domestic law provisions on pre-trial detention, see Khudoyorov v. Russia, no. 6847/02, §§ 76-96, 11 October 2005).

COMPLAINTS

1.  The applicant complained under Articles 3 and 8 of the Convention about the search of his car and ill-treatment during his arrest and first interviews.

2.  In his submissions of 14 August 2001, the applicant complained under Article 3 of the Convention about conditions of his detention from 19 May 1997 to 13 July 2000 and transport to and from the correctional facility in May and June 1998 and May 1999. In his submissions of 18 February 2003, he complained about the conditions of his detention and transport from the correctional facility in the period from 28 July 2000 to 11 November 2002.

3.  The applicant complained under Article 5 of the Convention about the excessive length of his pre-trial detention. He further submitted that from 3 March 1999 to 9 March 2000 and from 19 September 2002 to 12 January 2004 he had been detained without a judicial order.

4.  The applicant alleged various violations of fair-trial guarantees under Article 6 of the Convention.

5.  The applicant complained under Articles 6 § 1 and 13 of the Convention about the excessive length of the criminal proceedings and the lack of an effective remedy against it.

6.  The applicant complained under Articles 6 and 13 of the Convention about his disbarment in 2003.

7.  The applicant complained under Article 4 of the Convention that he was required to perform compulsory labour from August 2000 to May 2002.

8.  The applicant complained under Article 8 of the Convention that he had not been allowed to meet his daughter in May 2000. He further alleged that on 7 July 2001 he received a letter from his lawyer which had been opened. He submitted that the Federal Security Service had exerted pressure on him to make him divulge confidential information on his clients.

9.  The applicant complained under Article 10 of the Convention and Article 3 of Protocol No. 1 that he could not vote in presidential elections on 6 March 2000.

10.  The applicant complained under Article 11 of the Convention that he had been unable to maintain his legal practice while in detention.

11.   The applicant complained under Article 34 of the Convention that on 26 August 2002 the administration of the correctional facility had refused to dispatch an application to the Court which he had completed on behalf of another prisoner Mr K.

12.   The applicant complained under Article 1 of Protocol No. 1 that his money had been stolen and some of his possessions had been unlawfully seized during the search of his car on 17 May 1997. He further complained that the administration of the correctional facility where he had served his sentence misappropriated the proceeds from his account in 2001-2002. He alleged that his property rights had been infringed by reorganisation of the bar association of which he had been a member.

13.   The applicant complained under Article 13 of the Convention that he did not have an effective remedy for the above violations.

14.  The applicant complained under Article 14 of the Convention that he had been discriminated against on account of his status as a prisoner.

THE LAW

1.  The applicant invoked Articles 3 and 8 of the Convention in respect of the events that occurred in May 1997.

The Court reiterates that the Convention entered into force with respect to Russia on 5 May 1998, whereas the applicant’s complaint relates to a period prior to that date.

It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

2.  The applicant complained under Article 3 of the Convention about the conditions of his detention and transport.

(a)  In so far as the complaint concerns the detention between May 1997 and May 1998, the Court notes that the period in question had lapsed before the Convention entered into force with respect to Russia on 5 May 1998.

It follows that this part of the complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

(b)  To the extent the complaint concerns the events which occurred between May 1998 and 13 July 2000, the Court notes that the applicant for the first time raised this complaint on 14 August 2001, that is more than six months after the events complained about.

It follows that this part of the complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(c)  As regards the complaints about the conditions of his detention and transport between 28 July 2000 and 11 November 2002, the Court notes that the applicant has never brought this complaint to the attention of domestic authorities and therefore has not afforded them an opportunity to examine conditions of his detention and transport, and, if appropriate, to offer redress (see Metelitsa v. Russia (dec.), no. 33132/02, 28 April 2005).

It follows that this part of the complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3.  The applicant alleges that his pre-trial detention from 3 March 1999 to 9 March 2000 and from 19 September 2002 to 12 January 2004 did not satisfy the requirements of lawfulness and compliance with a reasonable time requirement set out in Article 5 of the Convention, which provides in the relevant parts as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

(a)  As to the alleged unlawfulness of the applicants’ detention from 3 March 1999 to 9 March 2000, the Court reiterates that it may deal only with the matter within a period of six months from the date on which the final decision was taken or the event occurred. The applicant introduced his application on 25 December 2000.

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

(b)  To the extent the applicant contested the lawfulness of his detention from 14 April 2003 to 12 January 2004, the Court observes that on 14 April 2003 the District Court dismissed the applicant’s request for release and extended his detention until 14 July 2003. The applicant’s detention was further extended on 14 July and 13 October 2003 until 14 October 2003 and 13 January 2004 respectively. There is nothing to suggest that the trial court acted in excess of its powers or jurisdiction in making such decisions or that such decisions were invalid or unlawful under domestic law (cf. Khudoyorov, cited above, § 152).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

(c)  In so far as the applicant contended that his detention from 19 September 2002 to 14 April 2003 was not covered by an appropriate court order and that the global length of his pre-trial detention was not reasonable, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4.  The applicant alleged violations of the fair-trial guarantees set out in Article 6 of the Convention.

The Court notes that the criminal proceedings against the applicant are now pending. It therefore remains open to him to raise these issues before the trial and/or appeal courts.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

5.  The applicant complained under Articles 6 § 1 and 13 of the Convention that the criminal proceedings against him had been unreasonably long and he did not have an effective remedy against the excessive length of the proceedings. The relevant parts of Article 6 read as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

6.  Lastly, the Court has examined the remainder of the complaints as submitted by the applicant. However, having regard to all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning lawfulness and length of the pre-trial detention, length of the criminal proceedings and lack of an effective remedy against it;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

BROVCHENKO v. RUSSIA DECISION


BROVCHENKO v. RUSSIA DECISION