AS TO THE ADMISSIBILITY OF
Application no. 3947/03
by Vladimir Igorevich SILIN
The European Court of Human Rights (First Section), sitting on 7 September 2006 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 27 January 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
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 applicant, Vladimir Igorevich Silin, is a Russian national, who was born in 1970 and lives in Moscow. He is represented before the Court by Mr V.A. Zherebenkov, a lawyer practising in Moscow. The respondent Government are represented by Mr P.A. 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 16 March 1999 criminal proceedings were brought against the applicant under Article 111 of the Criminal Code (intentional infliction of grievous bodily harm). This case was later joined with cases against several other persons.
On 28 August 2000 the applicant was detained on suspicion of having committed a crime punishable under Article 126 § 2 (a) of the Criminal Code (conspiracy to kidnap). A report on his detention stated, in respect of the grounds for detention, that eye-witnesses, including victims, had identified him as the perpetrator and that other grounds existed for suspecting him of committing the crime. The report cited as a further reason for his detention the need to prevent him from absconding and obstructing the investigation.
On 30 August 2000 an investigator ordered his pre-trial detention pursuant to Article 90 of the Code of Criminal Procedure. According to the Government, the investigator took into account the dangerousness and seriousness of the offence, as well as the risk of the applicant’s absconding and obstructing the investigation. The order was upheld by the acting prosecutor of the north-east administrative district of Moscow the next day.
On 7 September 2000 the applicant was charged on six counts including intentional infliction of bodily harm as part of a group of persons, attempted kidnapping by an organised group and conspiracy to murder.
On 26 October 2000 the prosecutor of the north-east administrative district of Moscow extended the term of the applicant’s pre-trial detention until 24 November 2000; on 2 November 2000 the Moscow prosecutor extended his detention until 24 February 2001.
By a decision of 28 November 2000 a judge of the Tverskoy District Court of Moscow dismissed the applicant’s complaint that his pre-trial detention was unlawful and unjustified. The judge referred to the nature, seriousness and circumstances of the offences of which the applicant stood accused and the danger to the public.
On 14 February 2001 a deputy Prosecutor General of the Russian Federation extended the applicant’s pre-trial detention until 24 May 2001, and on 10 May 2001 extended it further until 24 August 2001, on the grounds that the applicant was liable to abscond, resume his criminal activity and obstruct the investigation.
On 10 July 2001, after the investigation in the case had been completed and the indictment approved, the case against the applicant and his co-defendants was transferred to the Moscow City Court for trial.
By decision of a judge of the Moscow City Court of 31 July 2001 the hearing was set down for 14 August 2001 and an order was made for the applicant’s continued detention. According to the applicant, the judge did not hear evidence from him or his lawyers. The applicant did not appeal against the decision.
Between 14 August and 22 October 2001 the hearing was adjourned for reasons attributable to the applicant’s co-defendants.
The trial commenced on 22 October 2001.
On 26 November 2001 the lawyer of one of the applicant’s co-defendants Mr Grachev lodged an application seeking an order for his client to be made the subject of an out-patient psychiatric examination. The application was supported by all the other defendants and their lawyers. By a decision of 27 November 2001 the court granted the application and adjourned the hearing until 7 December 2001. On the latter date, following a further application by Mr Grachev’s lawyer supported by all the other defendants, the court ordered that Mr Grachev be made the subject of an in-patient psychiatric examination with a view to determining whether he could be held responsible for the offences of which he stood accused. It also ordered that the applicant remain in custody.
The trial recommenced on 3 April 2002 and was then adjourned until 13 May 2002 owing to the illness of one of the defendants and the need to summon witnesses.
On 23 May 2002 the public prosecutor lodged an application, based on the experts’ opinion, seeking an order for Mr Grachev to receive compulsory in-patient psychiatric treatment and requesting the postponement of the proceedings in consequence. On 24 May 2002 the court granted the prosecutor’s request and ordered that Mr Grachev undergo compulsory in-patient psychiatric treatment until his condition had improved. The court further ruled that the examination of the case against the other defendants, separately from Mr Grachev’s case, would undermine the thoroughness and objectivity of the trial. The court therefore adjourned examination of the case until Mr Grachev’s condition had improved.
The applicant requested his release subject to an undertaking not to leave his place of residence, referring to the uncertainty as to the duration of Mr Grachev’s treatment, his own lack of previous convictions, his permanent place of residence in Moscow, the fact that he had a wife and small child dependent upon him for support and the fact that he had a cancer-related illness requiring regular examinations by specialists of a kind not available at the detention facility. In its decision of 24 May 2002 the Moscow City Court rejected the request for release made by the applicant and his two co-defendants on the ground of the seriousness of the offences of which they stood accused.
The applicant’s lawyers lodged an appeal against this decision, requesting that the applicant be released from custody and instead, as a preventive measure, be required to give an undertaking not to leave his place of residence. They pointed once again to the uncertainty as to the duration of Mr Grachev’s treatment, during which time the case would lie dormant, and to the length of the applicant’s pre-trial detention, which had begun on 29 August 2000.
Mr Grachev’s lawyer also lodged an appeal against the decision of 24 May 2002. Relying on Articles 5 and 6 of the Convention, he complained that the unlimited extension of the pre-trial detention of his client and the other defendants in the case, including the applicant, constituted an unlawful and excessive restriction of their rights which completely disregarded their right to liberty. In practice, the decision of 24 May 2002 anticipated, by means of pre-trial detention, their future conviction and punishment, in breach of the principle of presumption of innocence. The lawyer also argued that the order extending the defendants’ pre-trial detention for an indefinite period – until the as yet unknown date of Mr Grachev’s recovery – exceeded permissible restrictions on human rights and freedoms.
Between 2 and 25 July 2002 the appeals were not examined as one of the defence lawyers was on annual leave. On 30 July 2002 the Supreme Court of the Russian Federation dismissed both appeals and upheld the decision. It held that the reasons given in support of the request for the applicant’s release could not be considered cogent as the applicant stood accused of serious crimes.
On 19 August 2002, after the case file had been returned to the trial court, the hearing was set down for 2 September, and then adjourned to 10 September 2002 owing to the failure of the defence lawyers to appear.
On 10 September 2002 the trial court, having heard evidence from the defence, who had requested the release of the applicant and his two co-defendants and substitution of the detention measure with another preventive measure not entailing deprivation of liberty, granted the prosecutor’s request and extended the pre-trial detention of the applicant and his co-defendants until 1 October 2002. Referring to Articles 255 and 256 of the Code of Criminal Procedure, the court gave as reasons for its decision the fact that the applicant and his co-defendants had been charged with a particularly serious offence (under Articles 30 § 1 and 105 § 2 of the Criminal Code) and that there were no grounds for annulling or altering the preventive measure chosen. By decision of 30 September 2002, at the prosecutor’s request, a further extension in respect of the same persons was ordered until 1 January 2003, on the same ground - that the applicant and his co-defendants had been charged under Articles 30 § 1 and 105 § 2 of the Criminal Code with a particularly serious offence. The court also referred to the decision of a medical committee of 20 September 2002 recommending that Mr Grachev’s compulsory treatment be stopped. The applicant did not appeal against these decisions.
On 30 December 2002, after Mr Grachev’s treatment had been stopped, the trial resumed. On the same day the court, at the prosecutor’s request, ordered Mr Grachev to be made the subject of an in-patient psychiatric expert examination with a view to determining whether he could be held responsible for the offences of which he stood accused, and extended the pre-trial detention of the applicant and three other defendants until 1 April 2003 in accordance with Article 255 of the Code of Criminal Procedure, on the ground of the seriousness of the offences of which they stood accused.
Mr Grachev’s psychiatric expert examination was carried out on 27 February 2003.
On 14 April 2003 the Moscow City Court ordered that the pre-trial detention of the applicant and three other defendants be extended from 1 April 2003 until 1 July 2003 inclusive, on the ground that they were accused of particularly serious offences and were liable to abscond and obstruct the proceedings, and in view of the circumstances of the case and their respective personalities. The court stated in its decision that it had had no opportunity to discuss the question of the preventive measure in respect of the applicant and the other defendants, whose pre-trial detention had previously been extended until 1 April 2003. The court noted that the case file had been kept throughout this period at the expert institution which had carried out Mr Grachev’s psychiatric examination.
Between 14 April and 6 May 2003 the hearing was adjourned for reasons imputable to the applicant’s co-defendants.
On 27 June 2003 the Moscow City Court delivered a judgment in the case against the applicant and seven other defendants. They were convicted of several crimes involving violence against customs officials. The applicant was convicted of attempted kidnapping as part of an organised group, inciting malfeasance in public office and aiding and abetting an assault on a public official. The prosecutor dropped some other charges against him, including those under Articles 30 § 1 and 105 § 2 of the Criminal Code. The applicant was acquitted on the remaining charges. He was sentenced to four years’ imprisonment. The period of his pre-trial detention commencing on 28 August 2000 was counted towards the term of his sentence.
No appeal was lodged against the judgment, which came into effect on 15 July 2003.
On 15 October 2003 the Tverskoy District Court of Moscow ordered the applicant’s early conditional release from serving the full sentence.
1. The applicant complained, relying on Articles 5 §§ 1 and 3, 6 § 2, 14 and 17 of the Convention, about the decision of the Moscow City Court of 24 May 2002 (ordering compulsory in-patient psychiatric treatment for the applicant’s co-defendant Mr Grachev, adjourning the trial and extending the applicant’s pre-trial detention, on the ground of the seriousness of the charges, until Mr Grachev’s condition had improved) and the subsequent court decisions extending his pre-trial detention essentially on the same ground of the seriousness of the offences of which he stood accused. The applicant alleged that the court decisions had constituted an excessive and unlawful infringement of his right to liberty and of the presumption of innocence, amounting in essence to a preliminary punishment.
2. The applicant also complained under Article 6 § 1 of the Convention that by adjourning the examination of the case for an indefinite period of time – until Mr Grachev’s recovery - the courts had breached his right to a hearing within a reasonable time.
3. In his observations in reply to those of the Government, submitted to the Court on 11 April 2005, the applicant complained under Article 5 of the Convention that the decision of the Moscow City Court of 31 July 2001 ordering his continued pre-trial detention had been adopted in his absence and in the absence of his lawyers. He further complained that his detention pending trial between 1 and14 April 2003 had not been ordered by any court decision, and that the retrospective decision of the Moscow City Court of 14 April 2003 ordering his detention from 1 April 2003 had been incompatible with Article 5.
1. The applicant complained, relying on Articles 5 §§ 1 and 3, 6 § 2, 14 and 17 of the Convention, that his right to trial within a reasonable time or to release pending trial had been violated, on account of the fact that the serious nature of the charges against him had been the only ground for his pre-trial detention.
The Court considers that this complaint falls to be examined under Article 5 § 3 of the Convention, the relevant part of which reads:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article 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. The parties’ submissions
1. The Government
The Government submitted that the applicant’s detention pending the preliminary investigation of the case had lasted from 28 August 2000 to 10 July 2001. During that time his detention had been extended in accordance with Article 97 of the Code of Criminal Procedure then in force. The applicant’s subsequent detention pending the proceedings before the Moscow City Court had ended with the judgment of 27 June 2003.
During the trial the applicant had only once appealed against a decision in respect of his detention to a higher court, when he appealed against the decision of 24 May 2002.
In determining the question of a preventive measure in respect of the applicant the domestic courts had considered the nature, seriousness and circumstances of the offences of which the applicant stood accused and the danger to the public, and also the risk that the applicant might abscond or obstruct the proceedings.
The Government asserted that the applicant’s detention had complied with the legislation governing criminal procedure and was compatible with Article 5 § 3 of the Convention.
The Government further argued that the applicant had failed to exhaust domestic remedies because he had not appealed against the judgment of 27 June 2003. Had he done so an appeal court could, in view of the circumstances of the case including the lengthy period of the applicant’s pre-trial detention, have decided to reduce the term of his imprisonment taking into account the time actually served, under Article 64 of the Criminal Code, which provided as follows:
“1. In the presence of exceptional circumstances related to the purposes and motives of the crime, the role played by the convicted person, his behaviour during or after commission of the crime, or other circumstances essentially reducing the degree of danger of the crime to society, and in the event of the active assistance of an accomplice to a crime committed by a group in the disclosure of that crime, the most lenient punishment provided for by the corresponding article of the special part of this Code may be imposed, or the court may even impose a more lenient penalty or may not apply an additional penalty considered as compulsory.
2. Both individual mitigating circumstances and the totality of such circumstances are to be regarded as exceptional.”
The Government also pointed out that the Moscow City Court had ordered in its judgment that the period of the applicant’s pre-trial detention be counted towards the term of his sentence.
The Government concluded that the complaint under Article 5 § 3 should be declared inadmissible.
2. The applicant
The applicant disagreed. In particular, he argued that the Moscow City Court had based its decisions of 10 and 30 September 2002, 30 December 2002 and 14 April 2003 to extend his pre-trial detention solely on the seriousness of the charges against him. The applicant noted that subsequently, during the trial, the prosecutor had dropped the charges against him under Articles 30 § 1 and 105 § 2 of the Criminal Code, to which the Moscow City Court had referred as a ground for his continued detention.
The applicant therefore asserted that in his case the Russian judiciary had acted in breach of the requirements of Article 5 §§ 1 and 3 of the Convention. The arbitrary extension of his pre-trial detention had constituted an unlawful and excessive restriction of his right to liberty. The domestic courts’ decisions had actually determined the guilty verdict and punishment by means of pre-trial detention, in breach of the presumption of innocence.
As to the Government’s plea of non-exhaustion, the applicant submitted that his complaint to the Court related not to the judgment of 27 January 2003 but to his pre-trial detention, which had been arbitrary and had not been reviewed, and to the unjustified adjournment of the trial pending Mr Grachev’s recovery, as a result of which his right to trial within a reasonable time or to release pending trial had been violated. The applicant had not appealed against the judgment because of the possibility of an early conditional release from serving the full sentence, not because he consented to it.
C. Admissibility of the complaint
As to the Government’s objection concerning the applicant’s alleged failure to exhaust domestic remedies, the Court observes that one possible remedy suggested in respect of the alleged violation of the right to trial within a reasonable time or to release pending trial under Article 5 § 3 had been an appeal against the judgment concerning the applicant’s conviction and punishment, with a view to having the term of imprisonment reduced on account of the lengthy period of his pre-trial detention.
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 notes that the reduction of a sentence may, in certain circumstances, be relevant for the question of the applicant’s victim status in respect of Article 5 § 3 complaints (see Dzelili v. Germany, no. 65745/01, §§ 82-86, 10 November 2005). However, as far as the exhaustion of domestic remedies is concerned, the Government has failed to show that an appeal by the applicant against the judgment with a view to obtaining a reduced sentence would have offered him reasonable prospects of success.
In view of the above, the Court dismisses the Government’s objection. It furthermore 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.
2. The applicant’s second complaint relates to the length of the proceedings, which began on 16 March 1999 and ended on 27 June 2003 with the judgment of the Moscow City Court. They therefore lasted four years, three months and thirteen days.
According to the applicant, the length of the proceedings, and, in particular, the decision of the Moscow City Court of 24 May 2002 adjourning the trial for an indefinite period, was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which, in its relevant part, reads:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government rejected the allegation. They submitted that the length of the proceedings had been justified by the need for the compulsory psychiatric treatment of the applicant’s co-defendant Mr Grachev, as the Moscow City Court had considered that a separate examination of the case against the remaining defendants would have undermined the thoroughness and objectivity of the trial. The Government further pointed out that the hearings had been adjourned for reasons attributable to the defendants: illness on their part, their failure to appear, failure of the defence lawyer to appear and the need to conduct the expert psychiatric examinations.
The Government claimed that the applicant had failed to exhaust domestic remedies as he had not lodged any complaint concerning the length of the proceedings or an appeal against the judgment of the Moscow City Court of 27 June 2003.
The applicant argued that the decision of the Moscow City Court of 24 May 2002, adjourning the trial until the as yet unknown date of Mr Grachev’s recovery, had not been justified as it had been adopted after all the evidence in the case had already been examined. Not until a year later had the City Court resumed examination of the case on the merits, with the result that it was examined by a new bench and from the beginning. The defence lawyers’ appeal against the decision of 24 May 2002 emphasising a violation of Article 6 had been ignored by the Supreme Court.
The applicant’s general submissions in reply to the Government’s plea of non-exhaustion are summarised above, as a part of his submissions concerning the complaint under Article 5 § 3.
The Court notes that the Government suggested that the applicant should have complained to a domestic authority about the inactivity of the Moscow City Court. However, they did not indicate with what authority such a complaint should have been lodged. They further alleged that the applicant’s failure to appeal against the judgment in his case signified a failure on his part to exhaust domestic remedies in respect of his complaint concerning the length of the proceedings. However, no explanation has been offered as to why an appeal against the judgment should be considered as a remedy capable of providing redress in respect of the complaint in question and offering reasonable prospects of success. That being the case, the Court dismisses the Government’s objection in respect of the exhaustion of domestic remedies.
The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case and the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
3. In his observations submitted to the Court on 11 April 2005 the applicant complained under Article 5 of the Convention that the decision of the Moscow City Court of 31 July 2001 ordering his continued pre-trial detention had been adopted in his absence and in the absence of his lawyer. He further complained that his detention pending trial between 1 and 14 April 2003 had not been ordered by any court decision, and that the retrospective decision of the Moscow City Court of 14 April 2003 ordering his detention from 1 April 2003 had been incompatible with Article 5.
The Court notes that there is nothing in the material in its possession to indicate that the applicant appealed against the decision of the Moscow City Court of 31 July 2001, or that he raised his complaint alleging the unlawfulness of his detention between 1 and 14 April 2003 before the domestic authorities. Even leaving aside the question of exhaustion of domestic remedies, more than six months had elapsed since the violations complained of by the time the complaints were lodged with the Court.
It follows that this part of the application must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention;
Declares admissible, without prejudging the merits, the applicant’s complaints concerning the alleged violation of his right to trial within a reasonable time or to release pending trial and concerning the excessive length of the proceedings;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
SILIN v. RUSSIA DECISION
SILIN v. RUSSIA DECISION