FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 21153/02 
by Vladimir Vladimirovich BEDNOV 
against Russia

The European Court of Human Rights (First Section), sitting on  
24 March 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs F. Tulkens
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler,

Mrs E. Steiner, judges
and Mr Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 14 April 2002,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vladimir Vladimirovich Bednov, is a Russian national, who was born in 1964 and lives in Krivoborye, the Voronezh Region. The respondent Government are represented by Mr Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

On 25 July 2001 the applicant was detained on suspicion of robbery.

On 27 July 2001 the Prosecutor ordered that the applicant should be taken into custody as a measure of restraint. The order contained, by mistake, a reference to the Code of Criminal Procedure of the Russian Federation instead of the Code of Criminal Procedure of the RSFSR (Russian Soviet Federative Socialist Republic), which was in force at the relevant time.

On 6 August 2001 the applicant filed a complaint with the Liskinskiy District Court of the Voronezh Region and on 7 August 2001 with the Voronezh Regional Court claiming that his detention was unlawful.

On 9 August 2001 according to the Government, on 10 August 2001 according to the applicant, as well as on 16, 23 and 27 August 2001 the applicant filed applications for release pending trial with the Voronezh Regional Court.

The Government submit that on 23 August 2001 the Voronezh Regional Court sent the applicant certain clarifications concerning Article 220-1 of the Code of Criminal Procedure.

The applicant submits that on 27 August 2001 he received a reply from the Voronezh Regional Court informing him that all his complaints and applications had been transmitted to the Liskinskiy District Court.

On 29 October 2001 the applicant filed an application with the Liskinskiy District Court for two witnesses against him to be examined during the forthcoming trial. The application was dismissed.

On 30 October 2001 the Liskinskiy District Court convicted the applicant of theft and sentenced him to four years and six months' imprisonment. At the trial the applicant was assisted by a legal aid lawyer. In the course of the hearing the applicant filed a request to see the transcript of the hearing. The applicant submits that the request was refused. However, it appears that he was provided with an opportunity to study the transcript after the hearing, but he informed the court in writing that he did not want to make use of this.

The applicant appealed against the judgment to the Voronezh Regional Court mainly on points of fact. He also complained about the refusal to provide him with the opportunity to study the transcript of the hearing.

On 19 March 2002 the judgment was upheld on appeal by the Voronezh Regional Court. The court found, inter alia, that the applicant had waived his right to study the transcript of the hearing by a written statement.

B.  Relevant domestic law

Pursuant to Article 220-1 of the Code of Criminal Procedure of 1960 in force at the material time, complaints about a decision to take a suspect into custody as a measure of restraint and about the length of the detention should be lodged by the detainee or his representative to a court. By Article 220-2, judicial review of the lawfulness, validity and length of the detention was carried out by a judge in camera at the place of the detention within three days of receipt of the material justifying the arrest.

COMPLAINTS

1.  The applicant complains under Article 5 § 1 of the Convention that his pre-trial detention was unlawful because the order to take him into custody contained a reference to the Code of Criminal Procedure of the Russian Federation instead of the Code of Criminal Procedure of the RSFSR.

2.  The applicant complains under Article 5 § 4 of the Convention that his complaints about the lawfulness of his pre-trial detention and applications for release pending trial were not considered by the domestic courts.

3.  The applicant further complains under Article 6 § 3 (c) and (d) of the Convention that his application for examination of the witnesses in the hearing was dismissed and that the appointed lawyer did not represent him properly.

4.  The applicant complains under Article 6 § 3 (b) of the Convention that his request to study the transcript of the hearing was dismissed.

THE LAW

1.  Invoking Article 5 § 1 of the Convention the applicant alleges that his pre-trial detention was unlawful because the order to take him into custody referred, by mistake, to the Code of Criminal Procedure of the Russian Federation instead of the Code of Criminal Procedure of the RSFSR. The Court will examine the complaint under Article 5 § 1 (c), which reads 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[.]”

The Court notes that the Code of Criminal Procedure of the RSFSR of 1960 was in force in the Russian Federation until 1 July 2002. The Court notes also that the order to take the applicant into custody of 27 July 2001 clearly referred to the corresponding provisions of the Code of Criminal Procedure of the RSFSR. At the same time, the name of the Code was indeed erroneously put down as the Code of Criminal Procedure of the RF. However, in the Court's view such a mistake in itself is not capable of rendering the applicant's detention unlawful in terms of Article 5 § 1 of the Convention.

In the light of all the material in its possession, the Court does not find any indication that the applicant's detention was unlawful or ordered otherwise than “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1 of the Convention. The Court considers that it was made in accordance with domestic law and fell within the ambit of Article 5 § 1 (c) of the Convention, having been effected for the purpose of bringing the applicant before the competent legal authority on suspicion of having committed an offence.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

2.  The applicant complains under Article 5 § 4 of the Convention that the domestic courts did not consider his complaints concerning the lawfulness of his pre-trial detention and applications for release pending trial.

Article 5 § 4 reads as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government submit that in reply to the applicant's complaints challenging the lawfulness of his pre-trial detention and applications for release pending trial on 23 August 2001 the Voronezh Regional Court sent him certain clarifications concerning Article 220-1 of the Code of Criminal Procedure. As regards the complaints and applications received by the courts after the aforementioned date, the Government maintain that the applicant sent them to the Zheleznodorozhniy Court of Voronezh and to the Liskinskiy District Court of the Voronezh Region, both of which lacked competence to examine them. The Government further assert that the Liskinskiy District Court had not examined the complaints and applications concerned because on 30 October 2001 the applicant was convicted. The Government conclude that for the above reasons the complaint is manifestly ill-founded.

The applicant contests the Government's submissions claiming that he did not send any complaints to the Zheleznodorozhniy Court of Voronezh. He contends that all of them were sent to the Liskinskiy District Court in accordance with the instructions received from the Voronezh Regional Court, however, none of them were examined.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3.  Invoking Article 6 § 3 (c) and (d) of the Convention the applicant complains about the dismissal of his application for examination of the witnesses in the hearing before the Liskinskiy District Court and alleges that the appointed lawyer acted contrary to his interests.

The Court must first examine whether the applicant has complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.

The applicant has not provided the Court with any documents to show that he invoked the complaint concerning the dismissal of his application for examination of the witnesses on appeal. Likewise, he submitted no evidence that the complaint concerning the legal assistance provided by the appointed counsel was invoked before domestic courts.

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

4.  The applicant complains under Article 6 § 3 (b) of the Convention about the dismissal of his request to study the transcript of the hearing.

The Court notes that this complaint was invoked before the appeal court, which found that the applicant had waived his right to study the transcript of the hearing as was acknowledged by his written statement. The applicant submitted no evidence to enable the Court to depart from these findings.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaint that his applications for release pending trial were not considered by the domestic courts;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis 
 Registrar President

BEDNOV v. RUSSIA DECISION


BEDNOV v. RUSSIA DECISION