FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26386/02 
by Petr Vsevolodovich FURSENKO 
against Russia

The European Court of Human Rights (First Section), sitting on

9 February 2006 as a Chamber composed of:

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

and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 17 June 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, Petr Vsevolodovich Fursenko, is a Russian national, who was born in 1968 and lives in Tver. He is represented before the Court by Ms K. Moskalenko, a lawyer practising in Moscow. The respondent Government are represented by Mr P. 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.

Institution of criminal proceedings against the applicant

On 18 July 2000 the investigating authorities instituted criminal proceedings against the applicant and another person. They suspected them of drug trafficking. On the same date the applicant was detained.

On 21 July 2000 he was released.

On 23 November 2000 the criminal proceedings against the applicant were severed from the proceedings against the other accused.

On 24 November 2000 a public prosecutor charged the applicant in absentia and ordered his arrest. The applicant was charged with purchase of 0,5263 grams of heroin on two occasions and its subsequent sale.

On 27 November 2000 the applicant was put on a list of persons wanted by the police.

On 14 April 2001 the applicant was arrested and taken into custody. The order to take him into custody was served on the applicant but he refused to countersign it.

The first complaint concerning the applicant’s detention

On 25 April 2001 the applicant filed a complaint about his arrest on 14 April 2001 with a court. Although a letter from the court of 28 May 2001 confirmed that a judge had received the complaint, it appears that the complaint was not examined.

The second complaint concerning the applicant’s detention

On an unspecified date the applicant’s mother filed a complaint claiming that his detention was unlawful.

On 6 May 2001 the Prosecutor of the Moskovskiy District of Tver dismissed the complaint on the following grounds:

“The preventive measure was applied to [Mr] Fursenko on valid grounds. At present there are no reasons to change the preventive measure.”

Service of the charges and transmittal of the bill of indictment to court

On 11 May 2001, 27 days after the arrest, the investigating authorities served the charges on the applicant and questioned him. On the same date a prosecutor ordered the applicant to remain in custody.

Having finished the investigation, on 14 May 2001 the investigating authorities passed the bill of indictment to the Moskovskiy District Court of Tver for trial.

On 23 May 2001 the Moskovskiy District Court of Tver joined the criminal proceedings against the applicant to criminal proceedings against another accused and ordered the preventive measure to remain unchanged.

Proceedings before the court and the third complaint concerning the applicant’s detention

On 18 June 2001, in the course of the first court hearing, the applicant asked for leave to have his mother as a representative. The application was granted.

In the hearing the applicant also asked for the case to be remitted for additional investigation and for release pending trial. He also complained about a number of procedural irregularities. The Moskovskiy District Court of Tver granted neither of the applications. The court held, inter alia:

“In the course of the hearing [Mr] Fursenko applied for the case to be remitted for additional investigation, ... asked to modify the preventive measure and apply the obligation not to leave his place of residence instead of detention...

[Mr] Fursenko is charged with a particularly grave offence; ... the preventive measure is applied having regard to the personality of [Mr] Fursenko who was previously convicted of a grave offence; no exceptional circumstances preventing [Mr] Fursenko from being isolated were presented to the court. [...]

Breaches of the terms for questioning the accused committed at the preliminary investigation may not be considered as a ground for altering the preventive measure in respect of [Mr] Fursenko who is charged with a particularly grave offence”.

The applicant appealed on the grounds, inter alia, that the preventive measure had been applied to him unlawfully, that he had not been notified about the institution of criminal proceedings against him, that he had never sought to evade investigation and had been put on the list of persons wanted by the police unlawfully.

On 19 July 2001 the Tver Regional Court upheld on appeal the ruling of 18 June 2001. The court ruled:

“The preventive measure in respect of [Mr] Fursenko is applied in compliance with [the law] taking into consideration all circumstances of the case... No circumstances preventing keeping him in custody are found”. ”

On 24 September 2001 the Moskovskiy District Court of Tver joined the proceedings against the applicant and another accused to criminal proceedings against the applicant concerning another offence. In the same ruling the court ordered the applicant to remain in detention.

The fourth complaint concerning the applicant’s detention

The applicant submits that on unspecified dates he complained that his continuing detention was not justified because no hearings had been held from 13 July to 21 November 2001. However, the complaints were not examined by the courts.

Remittal of the case for additional investigation and the fifth complaint concerning the applicant’s detention

On 24 December 2001 the Moskovskiy District Court of Tver, acting pursuant to Article 232 of the RSFSR Code of Criminal Procedure, remitted the case for additional investigation in order to reformulate the charges and ordered the applicant to remain in detention. The court did not reason its decision in this part. In the same hearing the applicant challenged the judge. The challenge was dismissed.

The Government submit that subsequently a prosecutor authorised the applicant’s continued detention.

On 2 January 2002 the applicant filed a complaint against the decision of 24 December 2001. He claimed that the preventive measure had been applied to him in breach of the procedural law.

On 14 February 2002 the Tver Regional Court dismissed the complaint. The court held:

“[The accused] are charged with a particularly grave offence. During the preliminary investigation the preventive measure... was applied to them ... on valid grounds. ...[The court] ... resolved the question concerning the preventive measure in accordance with [the law]. There are no grounds to change the preventive measure... for [the accused].”

On 18 February 2002 the case was actually transmitted for additional investigation to the investigative authorities.

The sixth complaint concerning the applicant’s detention and alleged failure to examine previous complaints

On an unspecified date the applicant’s mother complained to the prosecutor about the applicant’s detention.

In the reply of 13 March 2002 the prosecutor stated:

“...On 14 April 2001 the investigation of the criminal case was renewed because of the arrest of [Mr] Fursenko. In breach of [the law] the charges were served on [Mr] Fursenko only on 14 May 2001.

...The said breach of the law is not an unconditional ground for release...”

On 28 February 2002 the applicant’s mother complained to the court about the failure to examine the applicant’s complaints about his detention.

In the reply of 25 March 2002 the Moskovskiy District Court of Tver stated:

“The complaint concerning the lawfulness of [Mr] Fursenko’s arrest was received by the court on 28 April 2001. On 3 May 2001 the court requested [the investigating authorities] to provide [relevant] documents. Since the documents were not received, a second request was made on 22 May 2001... Since on 28 May 2001 the case was submitted to the court for consideration on the merits, the complaint was transmitted to the judge... When this issue was decided ... detention as a preventive measure remained unchanged.

After the case had been remitted for additional investigation [Mr] Fursenko again filed a complaint concerning the preventive measure. The court received the complaint on 27 February 2002, on 5 March 2002 necessary documents were requested and they were received on 13 March 2002. On 20 March 2002 the hearing concerning the complaint was adjourned because the accused requested the assistance of a lawyer.”

The seventh complaint concerning the applicant’s detention

On 28 February 2002 the applicant again filed a complaint concerning the alleged unlawfulness of his detention and applied for release pending trial on the grounds, inter alia, that he had never sought to evade investigation.

From 18 to 30 March 2002 the applicant went on hunger strike demanding that the authorities review the lawfulness of his arrest.

On 26 March 2002 the case was submitted to the court for trial. On the same date the Moskovskiy District Court of Tver, acting pursuant to Articles 220-1 and 220-2 of the RSFSR Code of Criminal Procedure, dismissed the applicant’s complaint concerning the unlawfulness of his detention and application for release pending trial, relying on the gravity of the offences the applicant was charged with. The court also noted:

“No exceptional circumstances preventing the application of detention as a preventive measure in respect of the applicant are established.”

The applicant appealed claiming that his pre-trial detention was unlawful.

On 4 June 2002 the Tver Regional Court quashed the ruling of 26 March 2002 and remitted the case for fresh examination by another judge. The court found that the applicant’s lawyer had not been notified about the hearing, which constituted a violation of the applicant’s defence rights, and instructed the lower court to take into consideration the applicant’s arguments. At the same time the court ordered the applicant to remain in detention on the grounds that the ruling of 26 March 2002 was quashed for procedural reasons.

On 15 July 2002 the applicant again went on hunger strike until 6 August 2002 demanding that the authorities review the lawfulness of his detention. It appears that he amended his complaint alleging, inter alia, that his detention between 14 April and 14 May 2001 and between 26 February and 25 March 2002 had been unlawful.

On 26 July 2002 the Moskovskiy District Court of Tver, acting pursuant to Article 125 of the RF Code of Criminal Procedure, held that the applicant’s detention had been lawful:

“[Mr] Fursenko is charged with two offences ... for which only punishment in the form of deprivation of liberty is provided. The application of the preventive measure and the fixing of the time-limits of [Mr Fursenko’s] detention between 14 April and 14 May 2001 and between 26 February and 25 March 2002 complied with the provisions of the legislation on criminal procedure ... [I]nformation about the personality of the accused, previously convicted of a grave offence, and the nature of the offence he is charged with, was taken into consideration.

Therefore, the preventive measure ... was applied to [Mr] Fursenko lawfully and on valid grounds, as were the extension of the time-limits of [his] detention between 14 April and 14 May 2001 and between 26 February and 25 March 2002 by the Prosecutor of the Moskovskiy District, who acted within his competence.

No exceptional circumstances pleading against placing [Mr] Fursenko in detention were presented to the court.”

The applicant appealed, insisting that his detention was unlawful.

On an unspecified date the applicant’s mother complained to the court about the failure to examine the applicant’s complaint about his detention.

In the reply of 31 July 2002 the Moskovskiy District Court of Tver stated:

“...[T]he complaint was examined on 26 July 2002. The length of proceedings concerning the complaint was due to circumstances beyond the control of the court: after the documents were received from the Tver Regional Court on 13 June 2002, on 18 June 2002 a request for documents was sent [to the investigating authorities]... On 26 June 2002 the hearing was adjourned following [Mr] Fursenko’s request for further documents; on 28 June 2002 this request was sent to the investigative authorities. Despite our numerous reminders and demands by the judge for immediate compliance with that request, the response was received by the court only on 19 July 2002.”

On an unspecified date the applicant asked for leave to study the file. On 29 August 2002 the Tver Regional Court granted the application and returned the case file to the Moskovskiy District Court of Tver. The applicant later applied for the hearing to be held in his presence. On 19 September 2002 the Tver Regional Court granted the application and scheduled the next hearing for 8 October 2002.

On 8 October 2002 the Tver Regional Court quashed the ruling of 26 July 2002 and remitted the case for a fresh examination by a different composition of judges. The court held:

“[The Moskovskiy District Court of Tver] dismissed [Mr] Fursenko’s complaint referring to [the gravity of the charges against him]... It also took into consideration the information about the personality of the accused, i.e. his previous conviction for a grave offence. Therefore, the court only addressed the grounds for application of the preventive measure to [Mr] Fursenko.

However, according to the provisions of Article 220-2 of the RSFSR Code of Criminal Procedure a court has to assess the lawfulness and reasonableness of the decisions concerning detention as a preventive measure taken by the investigating authorities. Lawfulness of an arrest means compliance with all [relevant] provisions of the legislation on criminal procedure.

In his complaint the applicant indicated breaches of the law committed in procedural documents concerning application of detention as a preventive measure. However, the court did not give any reasons as to why it did not accept the applicant’s arguments. In the court’s decision there is no analysis and assessment of the lawfulness of the application of detention as a preventive measure in respect of [Mr] Fursenko...

Accordingly, the court’s decision should be set aside as unlawful, and the case remitted for a fresh ... examination, [where] the court should ... examine the circumstances of the case, address [Mr] Fursenko’s arguments and decide strictly in accordance with the law the issue of the lawfulness and reasonableness of [Mr Fursenko’s detention] and duly reason its decision. The criminal case against [Mr] Fursenko was transmitted to the Moskovskiy District Court of Tver for consideration on the merits...”

On 31 October 2002 the Moskovskiy District Court of Tver discontinued the proceedings concerning the lawfulness of the applicant’s detention. The applicant appealed and applied for the appeal hearing to be held in the presence of him and his representative. On 26 November 2002 the Tver Regional Court ruled that neither the applicant’s nor his representative’s presence was required. It is not clear whether the appeal was examined.

Remittal of the case for additional investigation and the eighth complaint concerning the applicant’s detention

On 2 April 2002 the Moskovskiy District Court of Tver remitted the case for additional investigation on the grounds that the applicant and the co-accused had not been familiarised with the materials of the case. The court ordered the applicant to remain in detention, however, it did not reason its decision in this part.

The applicant filed a complaint against the decision.

On 25 June 2002 the Tver Regional Court amended the ruling of 2 April 2002 in the part relating to remittance of the case for additional investigation and upheld it in the remaining part. The court held:

“...[The accused] are charged with a particularly grave offence. The preventive measure... was applied to them at the stage of the preliminary investigation and remained unchanged when the case was remitted for additional investigation... in accordance with [the law].”

Extension of the applicant’s detention

The Government submitted that on 8 July 2002 the prosecutor had accepted the case file for further investigation.

On 12 July 2002 the Moskovskiy District Court of Tver extended the applicant’s detention until 6 August 2002. The court noted:

“...The investigator applied for extension of the detention in respect of both accused until 8 August 2002, taking into account that [the accused] are charged with a particularly grave offence... might seek to evade investigation and trial and interfere with the establishment of the truth”.

The court further held:

“...[The accused] are charged with an offence categorised as particularly grave and dangerous, only deprivation of liberty is provided as a punishment for this offence, the application [of the investigator for extension of the detention] set out reasons for extension of the detention, and the information about the personalities of the accused is taken into consideration.”

On 29 October 2002 the Tver Regional Court quashed the ruling of 12 July 2002 on the grounds that it was poorly reasoned. At the same time the court held:

“Since the criminal case against [the applicant] has been referred to the Moskovskiy District Court of Tver to be considered on the merits and since in accordance with [the law] when a criminal case is submitted to a court it has to make a decision concerning the preventive measure, i.e. whether it has to be changed, the present proceedings shall be terminated.”

The ninth and tenth complaints concerning the applicant’s detention

The applicant’s mother filed complaints with the court concerning the applicant’s detention and, inter alia, against the decision of 29 October 2002. The complaints were dismissed on 5 and 28 December 2002.

Directions hearing and order for the applicant to remain in custody

It is not clear whether at the directions hearing of 8 August 2002 the Moskovskiy District Court of Tver ordered the applicant to remain in custody.

On 4 December 2002 the Moskovskiy District Court of Tver fixed the hearing of the applicant’s case on 26-30 December 2002 and ordered him to remain in detention. The applicant appealed. It is not clear whether the appeal was examined.

Proceedings against the remand prison

On an unspecified date the applicant instituted proceedings against the remand prison claiming that his detention was unlawful.

On 25 November 2002 the Moskovskiy District Court of Tver dismissed the appeal. The court held:

“By [the investigator]’s order of 24 November 2000 detention as a preventive measure was applied to [Mr] Fursenko, that order being served on [Mr] Fursenko on 14 April 2001. ...[Mr] Fursenko is accused of [criminal] offences...

Since no decisions to change the preventive measure in respect of [Mr] Fursenko were taken by a competent agency, there were no grounds to release him”.

On 13 February 2003 the Tver Regional Court upheld the judgment.

Trial proceedings

On 14 February 2003 the Moskovskiy District Court of Tver acquitted the applicant who was released on the same day.

On 19 June 2003 the Tver Regional Court quashed the acquittal on appeal and remitted the case for a fresh examination by a different composition of judges.

On 5 September 2003 the Moskovskiy District Court of Tver fixed the hearing of the applicant’s case on 8-13 October 2003 and imposed on him an undertaking not to leave the place of his residence without permission as a preventive measure.

B.  Relevant domestic law

1.  The 1960 Code of Criminal Procedure, in force until 1 July 2002.

Article 11 (1). Personal inviolability

“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor’s order. [...]”

Article 89 (1). Application of measures of restraint

“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the inquirer, the investigator, the prosecutor or the court may apply one of the following measures of restraint in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or taking into custody. [...]”

Article 90. Application of a preventive measure to a suspect

“In exceptional instances, a preventive measure may be applied to a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days after a preventive measure is applied. If no charges are brought within the period specified, the preventive measure shall be cancelled.”

Article 91. Circumstances to be considered in applying a preventive measure

“When the need for application of a preventive measure is considered and the type of the measure is chosen... the circumstances to be taken into account shall include... the gravity of the charges brought and the personality of the suspect or the accused, occupation, age, health, family status and other circumstances.”

Article 92. Order and ruling on the application of a preventive measure

“A preventive measure shall be applied under an order made by an inquirer, an investigator, a prosecutor, or a reasoned ruling rendered by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure. The person concerned shall be informed of the order or ruling and at the same time the person shall be provided with explanations concerning the procedure for bringing complaint against the preventive measure applied.

A copy of the order or the ruling on the application of the preventive measure shall be immediately handed to the person concerned.”

Article 96. Taking into custody

“Taking into in custody as a preventive measure shall be effected in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of liberty for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of liberty for a period of less than one year is prescribed by law. [...]”

Article 97. Time-limits for pre-trial detention

“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension up to six months from the day of taking into custody may be effected only in cases of special complexity by a prosecutor of a subject of the Russian Federation ...

An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing grave or very grave criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to one year and a half) [...].

If the court remits for a new investigation a case in respect of which the time-limits for the applicant’s [detention during the investigation] have expired, and, in the circumstances, the preventive measure cannot be modified, the prosecutor ... shall extend the term of the detention within one month from the receipt of the case. Further extension of the term [of detention] shall be effected taking into account the time the accused had spent in detention before the case was sent for trial, in accordance with the procedure and within the limits provided for by parts one and two of the present article [...].”

Article 101. Cancellation or modification of a preventive measure

“A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the circumstances of the case so require. The cancellation or modification of a preventive measure shall be effected by a reasoned order of the person carrying out the inquiry, the investigator or the prosecutor, or by a reasoned court decision after the case has been transferred to a court.

The cancellation or modification, by the inquirer or by the investigator, of a preventive measure chosen on the prosecutor’s instructions shall be permissible only with the prosecutor’s approval.”

Article 220-1. Appeals against detention orders and extension of custody periods

 “Complaints about a decision of the body conducting the inquiry, the investigator or the prosecutor to apply detention as a preventive measure shall be brought before a court by the detainee, his counsel or his legal representative directly or via the person conducting the inquiry, the investigator or the prosecutor[...].”

Article 220-2. Judicial review of lawfulness and validity of detention orders and extension of custody periods

 “...The judge must review the lawfulness of the arrest or of the extension of detention ... within three days after receipt of documents confirming the lawfulness and validity of the detention as a preventive measure.

Judicial review of the lawfulness and validity of the arrest or of the extension of detention shall be conducted in a hearing in camera with the participation of the prosecutor, the counsel, if he participates in the proceedings, and the legal representative of the detainee. The judge shall summon to the hearing the detainee. Failure of the persons duly notified about the [hearing] to appear without valid reasons shall not prevent the judicial review.

Judicial review of the lawfulness and validity of the arrest or of the extension of detention in the absence of the detainee is allowed only in exceptional circumstances when the detainee applied for the complaint to be examined in his absence or of his own motion refuses to participate in the hearing [...].”

Article 222. Issues to be decided when appointing a hearing

“When appointing a hearing a judge shall decide in respect of each accused:

...5) whether the preventive measure applied to the accused is subject to modification or cancellation . [...]”

Article 232. Remittal of the case for additional investigation

“...When the case is remitted for additional investigation the judge has to decide on the application of a preventive measure in respect of the accused.”

2.  The 2001 Code of Criminal Procedure, in force from 1 July 2002.

Article 97. Grounds for applying a preventive measure

“1. An inquirer, an investigator, a prosecutor or a court within their competence may apply to an accused one of the measures of restraint provided for in the present Code when there are sufficient grounds to believe that an accused:

1) will evade an inquiry, preliminary investigation or trial;

2) may continue criminal activity;

3) may threaten a witness or other participants of the criminal proceedings, destroy evidence or otherwise interfere with the course of the criminal proceedings.

2. A preventive measure may also be applied in order to secure enforcement of the sentence.”

Article 99. Circumstances to be considered in applying a preventive measure

“When the need for application of a preventive measure is considered and the type of the measure is chosen... the circumstances to be taken into account shall include the gravity of the charges brought, the personality of the accused, his age, health, family status, occupation and other circumstances.”

Article 101. Order and ruling on the application of a preventive measure

“1. A preventive measure shall be chosen under an order made by an inquirer, an investigator, a prosecutor or a judge, or a ruling rendered by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure.

2. A copy of the order or decision on the application of the preventive measure shall be handed to the person concerned as well as to his lawyer or legal representative upon their request.

3. At the same time the procedure for appealing against the application of the preventive measure... shall be explained to the person concerned.”

Article 108. Taking into in custody

“1. Taking into in custody as a preventive measure shall be effected pursuant to a court decision in respect of a person suspected or accused of committing criminal offences for which the law prescribes a penalty in the form of deprivation of liberty for a period of more than two years when application of a milder preventive measure is impossible. ...the ruling of a judge shall specify concrete factual circumstances which constitute the grounds for such decision. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of liberty for a period of less than two years is prescribed by law, provided that:

1) a suspect or an accused does not have a permanent residence within the territory of the Russian Federation;

2) his identity has not been discovered;

3) he has violated a previously applied preventive measure;

4) he has fled from the investigative authorities or from the court. [...]

3. When it is necessary to apply taking into custody as a preventive measure a prosecutor or an investigator or an inquirer with the prosecutor’s consent file an application to that effect with the court. The application shall set out the reasons and grounds which make it necessary to take a suspect or an accused into custody and which make application of another preventive measure impossible. Materials supporting the grounds set out in the application shall be attached. If the application is filed in respect of a [detained] suspect, the order [on detention] and the indicated materials shall be submitted to a judge not later than 8 hours before the expiration of the term of detention.

4. [The application] shall be considered by a single judge ... with the participation of the suspect or the accused, a prosecutor, a counsel if the latter participates in the criminal case, either at the place of preliminary investigation or at the place of detention of the accused within 8 hours after the receipt of the materials by the court. [...]

7. Having examined the application a judge shall deliver one of the following rulings:

1) to [take in custody] the suspect or the accused;

2) to refuse the application;

3) to extend the term of detention. Provided the detention is recognised by the court as lawful and well-grounded, the term of detention may be extended up to 72 hours from the moment of the delivery of a court decision on application of one of the parties for the submission of additional evidence with regard to the sufficiency or insufficiency of the grounds for... taking into custody. The date and time until which the term of detention is extended shall be indicated in the ruling on extension of the term of detention. [...]

10. If the question of the application of taking into custody as a preventive measure in respect of the defendant arises in court, the court shall decide on this issue upon application by a party or of its own motion, issuing an order or ruling on the point.

11. A ruling of a judge on application or refusal to apply taking into custody as a preventive measure is subject to appeal within 3 days after its delivery. The appeal court shall decide [on the appeal] within 3 days of the date when it is lodged. [...]

Article 109. Time-limits for pre-trial detention

“1. A period of detention during the investigation of criminal offences may not last longer than two months.

2. If it is impossible to complete the preliminary investigation within 2 months and if there are no grounds for modification or cancellation of the preventive measure this time-limit may be extended by up to six months by a judge of a district or garrison court of the relevant level according to the procedure provided in Article 108 of the present Code. A further extension of this term up to 12 months may be effected in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case and provided there are grounds for application of this preventive measure by a judge of the same court upon application of the investigator, filed with the consent of a prosecutor of a subject of the Russian Federation or a military prosecutor of equal status.

3. A term of detention may be extended beyond 12 months and up to 18 months only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [a judge]on application by an investigator filed with the consent of the Prosecutor General of the Russian Federation or his deputy.

4. Further extension of the time-limit is not allowed. [...]

Article 110. Cancellation or modification of a preventive measure

“1. A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the grounds for application of a preventive measure... change.

2. The cancellation or modification of a preventive measure shall be effected by an order of the person carrying out the inquiry, the investigator, the prosecutor or the judge or by a court decision.

3. A preventive measure applied at the pre-trial stage by the prosecutor or by the investigator or the inquirer upon his written instructions may be cancelled or changed only with the prosecutor’s approval.”

Article 123. Right to appeal

“Actions (omissions) and decisions of the agency conducting the inquiry, the inquirer, the investigator, the prosecutor and the court may be appealed against according to the procedure provided in the present Code by the participants in the criminal proceedings and by other persons to the extent that the procedural actions carried out and procedural decisions taken affect their interests.”

Article 124. Procedure for consideration of a complaint by a prosecutor

“1. A prosecutor shall consider a complaint within three days of the date when it is lodged. In exceptional circumstances, when in order to check the complaint it is necessary to obtain on demand additional materials or to take other measures, a complaint may be considered within 10 days, notice of which shall be given to the complainant. [...]”

Article 125. Judicial procedure for consideration of complaints

“1. Orders of the inquirer, the investigator or the prosecutor about the refusal to institute criminal proceedings, or about termination of a case or their other orders and actions (omissions) which may infringe upon constitutional rights and freedoms of the participants in the criminal proceedings or impede access to justice for citizens may be appealed against to a district court according to the place where the preliminary investigation is conducted. [...]

3. The judge shall check the lawfulness and grounds of the actions (omissions) and decisions of the inquirer, the investigator, the prosecutor not later than 5 days after the receipt of the complaint in a hearing with the participation of the complainant and his counsel, a legal representative or representative if they participate in the criminal case, of other persons whose interests are directly affected by the action (omission) or decision appealed against and also with the participation of the prosecutor. [...]

Article 255. Decision concerning the preventive measure

“1. In the course of a judicial hearing the court may apply, change or cancel a preventive measure in respect of the defendant.

2. If taking into custody is applied to the defendant as a preventive measure, the term of detention from the date when the criminal case was submitted to the court and until the sentence is delivered may not exceed 6 months except for the cases provided for in paragraph 3 of this Article.

3. ...[U]pon expiry of 6 months from the date when the criminal case was submitted the court may extend the term of detention... only in respect of a criminal case concerning grave and particularly grave criminal offences and for not more than 3 months each time.

4. A court decision on extension of the term of detention of the defendant may be appealed against. The appeal does not suspend the criminal proceedings.”

COMPLAINTS

1.  The applicant complained under Article 5 of the Convention that his arrest on 14 April 2000 had been unlawful because he had been neither informed about the reasons for his arrest nor familiarised with the arrest order; his statutory rights had not been explained to him; no report on the arrest had been drawn up; and he had been informed about the charges against him and questioned only 27 days after his arrest. He further complained that his pre-trial detention had been unlawful.

2.  The applicant also complained under Article 5 of the Convention that there had been no reasonable grounds for him to remain in detention during such a lengthy period.

3.  Again relying on Article 5 of the Convention the applicant complained that a number of his complaints concerning his detention had not been examined speedily by a court and some of them had not been examined at all.

4.  The applicant complained under Article 6 of the Convention that the judge in the trial court had not been impartial because he had dismissed a number of his complaints and applications including the challenge for bias against the judge.

THE LAW

The applicant made a number of complaints under Article 5 of the Convention.

In so far as relevant, Article 5 provides:

“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.

4.  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 claimed that the applicant had failed to exhaust all domestic remedies in respect of possible claims for compensation of damage caused by the acts of State agencies, since the criminal proceedings against him were still pending.

As regards the Government’s objection that the complaints are premature, the Court notes firstly that the applicant’s complaints under Article 5 raised in the present application are not the subject of the pending criminal proceedings against the applicant. The Court reiterates that Article 35 § 1 of the Convention, which sets out the rule on exhaustion of domestic remedies, provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success (see Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V; and Mifsud v. France (dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court further recalls that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Kudła v. Poland [GC], no. 30210/96, § 158, ECHR-XI).

The Court notes that in the present case the Government did not explain how the fact that the criminal proceedings against the applicant were still pending was relevant to his complaints under Article 5. The Government did not indicate the remedies to which the applicant, in their view, ought to have had recourse, let alone explained how they could have provided redress in respect of his complaints under Article 5. For these reasons the Court rejects the Government’s objection.

1.  The applicant complained under Article 5 of the Convention that his arrest on 14 April 2001 had been unlawful because he had not been informed about the reasons for his arrest or the charges against him until 27 days later, when he had been questioned; he had not been familiarised with the arrest order; his statutory rights had not been explained to him; no report on the arrest had been drawn up. He also complained that his pre-trial detention had been unlawful.

The Government submitted that after 21 July 2000 the applicant had not appeared for investigative actions. On 24 November 2000 the prosecutor had ordered his arrest so as to prevent his absconding and interfering with the course of justice. On the basis of the order the applicant had been arrested on 14 April 2001. After the arrest the applicant’s criminal case had been transmitted to court on 14 May 2001. In accordance with the provisions of the Code of Criminal Procedure then in force the court had authorised his detention at the directions hearing on 23 May 2001. The application of the preventive measure had been subsequently upheld by the rulings of the Moskovskiy District Court of Tver of 18 June, 24 September and 24 December 2001. After the remittal of the case for additional investigation on 24 December 2001 the prosecutor had extended the term of the applicant’s detention. They further submitted that after the applicant’s application for release pending trial had been dismissed on 26 March 2002, on 2 April 2002 the case had been again remitted for additional investigation. On 8 July 2002 the prosecutor had accepted the case file for further investigation. On 12 July 2002 the Moskovskiy District Court of Tver had extended the applicant’s detention until 6 August 2002. On 5 August 2002 the case had been transmitted to court and 4 December 2002 the applicant’s continued detention had been reviewed by a judge. Accordingly, between 5 August and 4 December 2002 the applicant’s pre-trial detention had been within the jurisdiction of the Moskovskiy District Court of Tver. The Government concluded that the applicant’s detention was authorised throughout its term in accordance with the domestic laws on criminal procedure.

The applicant contended that he had not failed to appear for investigative actions but he had not been properly notified about them. Furthermore, he could not have been arrested on 14 April 2001 on the basis of the order of 24 November 2000 because it had not existed at the time. The order was made during his detention in remand prison and backdated. The applicant maintained that the decision of the Moskovskiy District Court of Tver of 23 May 2001 to remand him in custody had been unlawful since neither the applicant nor his representative had been present at the hearing. Likewise, the decision of the Moskovskiy District Court of Tver of 8 August 2002 had been unlawful because the court had failed to verify whether a copy of the bill of indictment had been served on the applicant. The applicant averred that the whole term of his detention had been in breach of Article 5 § 1 (c), in particular, because the court’s decisions to remand him in custody had not been duly reasoned.

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. It concludes therefore that this part of the application 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.

2.  The applicant complained under Article 5 of the Convention that his lengthy pre-trial detention had not been justified.

The Government submitted that on 14 April 2001 the applicant had been detained because he had absconded from the investigation and had been put on a list of persons wanted by the police. The case had been sent for trial for the first time as early as 14 May 2001. Accordingly, there had been no breach of Article 5 § 3 of the Convention.

The applicant contested the Government’s submissions. He averred that the mere reference to the case being transmitted for trial on 14 May 2001 was not sufficient to justify the length of his pre-trial detention. Referring to the case of Smirnova v. Russia (nos. 46133/99 and 48183/99, §§ 58-61, ECHR 2003-IX (extracts)), the applicant argued that the domestic courts’ decisions to remand him in custody between 14 April 2001 and 14 February 2003 had not been based on any of the reasons for refusing bail accepted by the Court, e.g. the risk that the applicant, if released, would fail to appear for trial, take action to prejudice the administration of justice or commit further offences. According to the applicant, the domestic courts had failed to show that there had been “relevant and sufficient” reasons for his continued detention and, consequently, it had not been compatible with Article 5 § 3.

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. It concludes therefore that this part of the application 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.  The applicant complained under Article 5 of the Convention that a number of his complaints concerning his detention had not been either examined speedily by a court or examined at all.

The Government submitted that the applicant’s complaints concerning the lawfulness of his detention had been regularly examined by the courts of the first and appeal instances, as required by Article 5 § 4. In particular, the applicant’s complaint of 25 April 2001 was dismissed by the Moskovskiy District Court of Tver on 18 June 2001 in a decision which was upheld by the Tver Regional Court on 19 July 2001. His complaint of 2 January 2002 was dismissed by the Tver Regional Court on 14 February 2002. Another complaint lodged by the applicant was dismissed by the Moskovskiy District Court of Tver on 26 March 2002. That decision was quashed by the Tver Regional Court on 4 June 2002 and, after another cycle of first instance and appeal examinations, the Moskovskiy District Court of Tver discontinued the proceedings concerning the complaint on 31 October 2002. In the subsequent hearing in the Tver Regional Court on 26 November 2002 it was explained to the applicant that the lawfulness of the procedural acts performed during the preliminary investigation had been reviewed by the court when examining the applicant’s case on the merits. Accordingly, the discontinuation of the proceedings concerning the applicant’s complaint on 31 October 2002 had not violated his rights under Article 5 § 4. For the same reasons the Tver Regional Court’s decision of 29 October 2002 to terminate the proceedings concerning the applicant’s appeal against the ruling of the Moskovskiy District Court of Tver of 12 July 2002 was not in breach of Article 5 § 4.

The Government further maintained that the examination of the applicant’s complaints concerning his pre-trial detention had been postponed a number of times for valid reasons. In particular, on 30 April and 21 May 2002 it had been postponed because of the failure to notify the applicant’s representative of the hearings. On 29 August 2002 the hearing was postponed because of the applicant’s request for time to familiarise himself with the case-file and on 19 September 2002 because of his application to be present at the hearing on appeal. The Government concluded that the delays in the examination of the applicant’s complaints concerning his pre-trial detention had been either due to valid reasons or caused by the applicant himself and not attributable to the domestic authorities.

The applicant contested the Government’s submissions on a number of grounds. He noted that the Government provided no information concerning the examination of his complaints lodged between 13 July and 21 November 2001. As regards his complaint of 25 April 2001, it could not have been examined on 18 June 2001, because, according to the decision given on that date, the Moskovskiy District Court dismissed the application for release pending trial lodged by the applicant at the hearing. The applicant’s complaint lodged on 2 January 2002 had been examined on 14 February 2002, that is after one month and twelve days, which was not compatible with Article 5 § 4. The applicant’s appeal against the decision of 12 July 2002 had not been examined “speedily” either. Likewise, the time taken for examination of the applicant’s complaint lodged on 28 February 2002 was in breach of Article 5 § 4.

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. It concludes therefore that this part of the application 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.

4.  The applicant complained under Article 6 of the Convention that the trial judge was not impartial because he had dismissed a number of his applications and complaints.

However, the Court notes that the criminal proceedings against the applicant in the domestic courts are still pending. Accordingly, it would be premature to deal with this matter until the domestic courts have finally determined the criminal offences with which the applicant is charged and before which he can still pursue this Convention complaint.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints that his pre-trail detention was unlawful; that the length of his pre-trial detention was not justified; that a number of his complaints concerning his pre-trial detention were not examined speedily by a court and some of them were not examined at all.

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

FURSENKO v. RUSSIA DECISION


FURSENKO v. RUSSIA – COMMUNICATED CASE