FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4493/04 
by Platon Leonidovich LEBEDEV 
against Russia

The European Court of Human Rights (First Section), sitting on 25 November 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 22 January 2004,

Having regard to the factual information submitted by the Government on request of Judge Rapporteur pursuant to Rule 49 § 2 (a) of the Rules of Court and the comments in reply submitted by the applicant,

Having regard to the decision by the President of the Chamber of 6 April 2004 to give priority to the application pursuant to Rule 41 of the Rules of Court,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Platon Leonidovich Lebedev, is a Russian national, 
who was born in 1956 and lives in Moscow. He is represented before 
the Court by Ms Yelena Liptser, Mr Yevgeniy Baru, lawyers practising in Moscow, Mr Wolfgang Peukert, a lawyer practising in Strasbourg, and Messrs Amsterdam & Peroff, lawyers practising in Toronto.

A.  The circumstances of the case

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

1.  The applicant's arrest and pre-trial detention

On 20 June 2003 the General Prosecutor's Office opened a preliminary criminal investigation on suspicion of fraud in a private company.

On 2 July 2003 the police arrested the applicant as a suspect.

On 3 July 2003 the applicant was charged with fraud and non-compliance with a court order. The prosecution's case was that in 1994 the applicant, as the president of a private bank, had masterminded a deceitful acquisition of a share in an apatite mining factory and later refused to comply with a judgment obliging him to return the share to the State. Simultaneously, the General Prosecutor's Office applied to the Basmannyi District Court of Moscow (“the Basmannyi Court”) for a detention order.

At 2.52 p.m. on 3 July 2003 an investigating officer informed the applicant's lawyers that at 4.30 p.m. the same day the Basmannyi Court would examine the request for detention. However when the lawyers had come to the court, they could not take part in the hearing because the hearing room was locked, and the judge would not open it. Later they learned that in the beginning of the hearing the judge had decided, without citing any formal reasons, that the hearing should be held in private.

On 3 July 2003 the Basmannyi Court granted the detention order and remanded the applicant in pre-trial custody. The court found as follows:

“...The court takes into account that [the applicant] is accused of moderately serious and serious offences punishable with over 2 years' imprisonment. [Furthermore], the circumstances and the nature of the imputed offences, the information about [the applicant's] personality and his social status give reasons to believe that if remained at large, [the applicant] may abscond from the investigation and trial given that, as established by the investigation, [he] committed the offences not accidentally but deliberately and on numerous occasions over a long period of time. [Besides], the persons, through whose assistance [the applicant] committed the offences, continue at present to depend on him financially and otherwise as employees of companies controlled by him. [In this connection], if remained at large, [the applicant] may induce them to forswear themselves or to avoid testifying, [he] may interfere with witnesses and other participants of the proceedings and otherwise interfere with the establishment of the truth. [T]hese circumstances and the evidence gathered in the file convince the court that if remained at large, [the applicant] may continue his criminal activity, destroy the evidence and otherwise hamper the proceedings. The fact that [the applicant] has a travel passport ... suggests that he ... may flee abroad from the investigation authorities and the court. The court also takes into account [the applicant's] age, occupation, family status, his having three minor children and the condition of his health which ... permits him to participate in the investigation.

In view of the above, the court finds that there is no reason to apply to the applicant a precautionary measure less severe than detention...”

With regard to the absence of the lawyers from the hearing, the court noted as follows:

“The court finds ungrounded and cannot accept [the applicant's] motion to adjourn [the decision] until [his lawyers] may take part in the proceedings. The documents submitted by the investigating authorities prove that [the lawyers] have been informed about the time and place of the hearing in advance, namely at 2.52 p.m. on 3 July 2003 [they] were informed that at 4.30 p.m. on 3 July 2003 [the Basmannyi Court] would examine [the investigating officer's request for detention order]. In reality, the hearing ... began at 5.50 p.m. on 3 July 2003, but [the lawyers] have still not arrived, nor have they presented valid reasons for their absence...”

The applicant's lawyers appealed against this decision.

On 23 July 2003, the Moscow City Court upheld the decision on appeal. In the hearing the public prosecutor submitted additional evidence in favour of the detention, and the applicant's lawyers were given an opportunity to comment on it. The court decided as follows:

“The General Prosecutor's Office [has submitted] evidence that [the applicant] has three travel passports; that most of [his] money is [converted into] foreign currency and deposited on foreign ... bank cards; that he has real estate abroad and that his main business is located outside Russia. [The applicant's] lawyers did not contest this information in the hearing. [This information], together with the fact that [the applicant] heads several commercial banks and maintains international relations, supports the [first-instance] court's conclusion that [the applicant], if remained at large, may abscond from the investigation and trial, influence ... witnesses, destroy evidence and otherwise obstruct the proceedings...”

With regard to the absence of the lawyers from the hearing before the Basmannyi Court, the Moscow City Court noted that the lawyers had been properly informed about the place and time of the hearing; the hearing had been held in private because the judge had decided so on request of the public prosecutor; the procedural law did not require a separate written decision on this matter.

On 20 August 2003 the investigation ended.

On 22 August 2003 the applicant and his lawyers began to study prosecution files.

On 28 August 2003 the Basmannyi Court on request of the public prosecutor extended the applicant's detention until 30 October 2003. On 15 October 2003 the Moscow City Court upheld this decision on appeal.

On 28 October 2003 the Basmannyi Court on request of the public prosecutor extended the applicant's detention until 30 December 2003. On 23 December 2003 the Moscow City Court upheld this decision on appeal.

On 26 December 2003 the Basmannyi Court on request of the public prosecutor in a private hearing extended the applicant's detention until 30 March 2003. On an unspecified day in January 2004 the applicant's lawyers appealed against this decision. On 9 February 2004 the Moscow City Court upheld this decision on appeal.

The extensions were reasoned with the need to give the applicant sufficient time to study the prosecution files.

On 5 March 2004 the Basmannyi Court on request of the public prosecutor limited the time allowed for the applicant to study the files. The court found that the applicant and his lawyers had been studying the files since 22 August 2003, and that they had been deliberately delaying the process. The court decided that the applicant should finish studying the files by 25 March 2004. On 24 March 2004 the Moscow City Court upheld this decision on appeal.

2.  The applicant's lawyers' visits to prison

On 4 December 2003 and 22 March 2004 the applicant's lawyer, Mr Baru, visited the applicant in Remand Centre IZ-77/1. As he was leaving the prison, guards stopped him and confiscated a number of confidential documents related to the applicant's defence.

On 23 March 2004 the applicant's other lawyer, Ms Liptser, wished to visit the applicant in prison to discuss his application to the Court. However, the prison administration refused the visit without giving any reasons.

3.  Trial

On 26 March 2004 the case was submitted for trial to the Meshchanskiy District Court of Moscow (“the Meshchanskiy Court”).

On 6 April 2004 the Meshchanskiy Court set a preliminary hearing for 15 April 2004 and decided that the precautionary measure, detention, should remain in force. On 12 April 2004 the applicant's lawyer appealed against this decision. She argued, inter alia, that there had been no legal grounds to keep the applicant in custody any longer and that the decision had been given without a hearing.

On 15 April 2004 the applicant's lawyer requested the court to release the applicant. She argued, in particular, that from 30 March 2004, when the applicant's detention on remand had expired, until 6 April 2004, when the Meshchanskiy Court accepted the case for trial, there had been no judicial decision which would sanction the applicant's continued detention. Furthermore, the decision of 6 April 2004 did not contain any reasons in favour of the detention and did not set a deadline for it.

On 15 April 2004 the Meshchanskiy Court rejected this request, inter alia, on the grounds that the case had been submitted for trial before the term of detention had expired and that from that moment the applicant had been “under the jurisdiction of the court” («осуществлено перечисление [заявителя] за судом»).

On 15 April 2004 the applicant's lawyer also requested the court to replace the detention with any other, less severe, precautionary measure.

On 15 April 2004 the Meshchanskiy Court rejected this request. The court found as follows:

“[The court] takes into account that [the applicant] is accused of a number of offences, including serious ones, punishable with over 2-years' imprisonment. The combination of the seriousness of the charge and the information about the applicant's personality give a reason to suspect that, if released, the applicant may abscond from the trial, interfere with the proceedings and influence witnesses. [In particular], the persons suspected of having committed the offences in concert with [the applicant] have gone into hiding. [The applicant] maintains international links. [He] is accused of offences committed in his capacity as a manager of commercial companies. The persons, with whose assistance, according to the investigating authorities, [the applicant] committed the offences, still work in the companies and depend on [him] financially and otherwise. [The applicant] may therefore influence them...”

The applicant's lawyers appealed against this decision.

On 8 June 2004 the Meshchanskiy Court examined the results of the preliminary hearing and set a date of the first hearing on the substance of the case. The court also ordered that the applicant should remain in custody. The applicant was absent from this hearing. The applicant's lawyers appealed against this decision.

On 9 June 2004 the Moscow City Court rejected the applicant's appeals against the decisions of 6 and 15 April 2004.

On 29 July 2004 the Moscow City Court rejected the applicant's appeal against the decision of 8 June 2004.

4.  The applicant's health condition

(a)  The applicant's account

According to the applicant, he is seriously ill and may even die if left in prison because no adequate medical treatment is available there.

On 30 June 2003 the applicant anonymously consulted a gastroenterologist of “On Clinic Medical Centres”—a private clinic in Moscow. The doctor diagnosed the applicant's condition as follows:

“Based on the patient's complaints, case history and physical examination data, [it is] supposed that the patient has chronic hepatitis with possible transformation into cirrhosis. To make a more accurate diagnosis, [it is recommended that the patient undergo] in-patient examination, including gastroscopy, hepatitis virus markers determination, biochemical and clinical blood tests with haemocoagulation determination, ultrasound examination of abdominal cavity organs.

In the absence of complete examination of the patient, it is rather difficult to judge about the stage of the disease. If chronic hepatitis has presently transformed into cirrhosis accompanied by portal hypertension with the formation of varicose oesophageal veins, the development of oesophageal haemorrhage may lead to irreversible effect up to fatality.”

At the time of his arrest, on 2 July 2003, the applicant was receiving in-patient treatment at the Vishnevskiy Military Hospital.

During an interrogation on 2 July 2003, the applicant's lawyers noticed that the applicant looked ill: he had a reddish face, a twitching eye, trembling fingers, disorientation in time and space, disrupted speech.

The lawyers a number of times asked the investigating authorities to have the applicant examined by doctors in order to find out whether he was fit to stand the investigation and trial. These requests were rejected because according to reports of prison doctors and doctors of the Vishnevskiy Military Hospital, the applicant's condition was satisfactory and under constant professional supervision.

On 26 December 2003, when the applicant was in a court hearing he felt so bad that the court had to call an ambulance.

On 30 March 2004 a panel of three physicians from the University of Toronto delivered their opinion based on the Russian doctors' reports. The panel found as follows:

“[The applicant] is suffering from two identified life threatening illnesses:

1.  Advanced hepatitis with evidence of possible cirrhosis (extensive destruction of the liver from fibrosis and degenerative changes), possible hepatic encephalopathy (... a complex syndrome characterized by disturbance in consciousness, behaviour, personality, fluctuating neurological signs, a tremor...), and a documented previous gastrointestinal bleed; ...

2.  Uncontrolled hypertension with evidence of possible stroke (a clot or bleed in the brain) or TIA (intermittent strokes), and possibly hypertensive encephalopathy...

[The applicant] is in imminent risk of irreparable life threatening:

1.  Neurological (brain) damage from advanced live disease affecting his central nervous system and uncontrolled hypertension causing stroke and hypertensive encephalopathy;

2.  Cardiovascular (heart) disease including heart attack, heart failure, and cardiac arrhythmia (electrical disturbance) from his uncontrolled and untreated hypertension;

3.  Hepatic (liver) damage from cirrhosis of the liver, portal hypertension (hypertension affecting the venous blood system surrounding the liver and related organ systems), fulminate hepatitis (hepatitis that has spread to affect major organ systems in the body), and hepatic encephalopathy.

Each of these ... ailments alone, or in concert, is considered a clinically serious life threatening illness with an extremely high morbidity and mortality rate...”

On 29 June 2004 the applicant was transferred from the medical unit of the prison to an ordinary cell.

On 7 July 2004 a doctor from the King's College Hospital in London drafted a report based on the applicant's case history and documents related to the applicant's examination by the Russian doctors in prison. The doctor concluded that:

“[T]here [was] sufficient evidence to presume that [the applicant's] liver disease [had] not been properly examined, that it [might] be much more serious than diagnosed, and that a proper examination [was] only possible in a specialised medical centre.”

On 9 July 2004 a doctor from Temple Fortune Health Centre in London drafted a report based on the documents issued by the Russian doctors. The doctor supposed that:

“[W]ithout further intervention:

(1)  It [was] very likely that the [applicant's] ... liver disease [would] be progressive, have a poor prognosis, and lead to death.

(2)  It [was] very likely that the ... blood pressure [would] be progressive, have a poor prognosis, and lead to death.

(3)  It [was] very likely that the combination of both the ... liver disease together with ... blood pressure [would] be accelerated progression, have a poorer prognosis, and lead to early death.”

(b)  The Government's account1

According to the Government, the applicant is ill but fit for the investigation and trial. He receives adequate medical treatment in prison.

On 2 July 2003 doctors of the Vishnevskiy Military Hospital diagnosed the applicant with vegetovascular dystonia but found his condition satisfactory.

After his arrest, the applicant was detained in Lefortovo Remand Centre in Moscow. On 4 July 2003, on his admission to the prison, the applicant made no complaints about his health and the prison doctor found him practically healthy. During his stay in this prison the applicant had a cardiogram, a chest x-ray and blood tests which revealed no pathology. The applicant refused any medical assistance.

Since 21 October 2003 the applicant has been detained in Remand Centre IZ-77/1 of Moscow. Between 23 December 2003 and 18 February 2004 prison doctors, including a neuropathologist and an eye doctor, examined the applicant about two dozen times. The applicant had blood and urine tests, a chest x-ray, two cardiograms and three ultrasound tests. The doctors diagnosed him with hypertension and chronic hepatitis, but steadily found his condition satisfactory. Except on one day, the doctors concluded that the applicant's health permitted him to participate in hearings.

On 2 March 2004 the applicant was examined by a panel of doctors comprised of the Chief Physician of the Moscow Health Department, Deputy Medical Director of the Moscow Prisons Department, Deputy Director of Remand Centre IZ-77/1 in charge of healthcare and an infectiologist. The panel found that:

“[The applicant] suffer[ed] neuroculatory dystonia of hypertensive type, chronic subacute hepatitis of non-complicated course, i.e. without transformation into cirrhosis and portal hypertension.”

5.  Proceeding against YUKOS Oil Company

The applicant receives income from Group Menatep Ltd., a holding company which owns a majority share in YUKOS Oil Company (“YUKOS”).

On 26 May 2004 the Moscow City Commercial Court recovered from YUKOS a considerable amount in tax arrears. The judgment debt was made immediately enforceable, despite YUKOS' disagreement with it. In the course of the enforcement, the company's offices were searched by bailiffs accompanied by armed agents. State officials made public statements to discredit YUKOS.

B.  Relevant domestic law

Code of Criminal Procedure of 2001 (“the CCrP”) provides as follows:

Article 99. Circumstances to be taken into account when choosing a precautionary measure

“When deciding whether it is necessary to apply a precautionary measure and when choosing its type ... one should to take into account the seriousness of the charge, the information about the defendant's personality, his age, health, family status, occupation and other circumstances.”

Article 108. Pre-trial detention

“1.  Pre-trial detention as a precautionary measure shall be applied by a court only where it is impossible to apply a different, less severe, precautionary measure...

3.  When the need arises to apply detention as a precautionary measure ... the investigating officer shall request the court accordingly...

4.  [The request] shall be examined by a single judge of a district court ... with the participation of the suspect or the accused, the public prosecutor and the defender, if one takes part in the proceedings. [The request shall be examined] at the place of the preliminary investigation, or of the detention, within 8 hours of the receipt of the [request] to the court... If the parties duly informed of the time of the hearing, except the accused, fail to appear, the request may be examined in their absence...”

Article 109. Custody periods

“1.  Pre-trial detention pending investigation may not exceed 2 months.

2.   If it is impossible to finish the preliminary investigation in 2 months, and if there are no grounds to change or lift the precautionary measure, the custody period may be extended by a judge ... up to 6 months. Further extension is only possible in respect of persons charged with serious or particularly serious offences, only in case of particular complexity of the case ... up to 12 months.

3.  Extension of the custody period over 12 months shall only be possible in exceptional circumstances in respect of persons charged with particularly serious offences. [The extended period may not exceed] 18 months.

4.  There shall be no further extension of the custody period. The detained accused shall be immediately released...

5.  If the investigation has finished, the file gathered in the course of it shall be served on the detained accused ... at least 30 days before the expiry of the custody period as set out in sections 2 and 3 of the present Article...

7.  If ... the accused and his defender fail to study the prosecution file within 30 days, the investigating officer may ... request ... the court ... to extend this period.

8.  When the judge receives such a request, he shall ... take one of the following decisions:

i)  to extend the custody period until the accused and his defender finish studying the prosecution file and until the public prosecutor submits the case to a court for trial... ; or

ii)  to refuse the investigating officer's request and to release the accused from custody...”

Article 227. Judge's powers in respect of a criminal case submitted for trial

“1.  When a criminal case is submitted [to the court], the judge shall decide as follows: either

i)  to forward the case to an [appropriate] jurisdiction; or,

ii)  to hold a preliminary hearing; or,

iii)  to hold a hearing.

2.  The judge's decision shall be formalised as a resolution...

3.  The decision shall be taken within 30 days of the submission of the case to the court. If the accused is detained, the judge shall take the decision within 14 days of the submission of the case to the court...”

Article 228. Points to be ascertained in connection with a criminal case submitted for trial

“Where a criminal case is submitted for trial, the judge shall ascertain the following points in respect of each accused:

i)  whether the court is competent to deal with the case;

ii)  whether copies of the indictment have been served;

iii)  whether the precautionary measure should be lifted or changed;

iv)  whether the motions filed should be granted...”

Article 337. Examination of criminal cases by the court of cassation instance

“5.  The parties may submit to the court of cassation instance additional evidence in support or in disproof of the points of appeal...”

COMPLAINTS

1.  The applicant complained under Article 3 of the Convention that by detaining him, a seriously ill person, the authorities subjected him to inhuman and degrading treatment.

2.  The applicant complained under Article 5 § 1 (c) that his detention and its extensions were not “lawful” because a number of provisions of domestic law had been breached.

In particular, contrary to Article 108 of the CCrP, the Basmannyi Court proceeded from the presumption that the applicant should be detained unless there were reasons to apply a less severe precautionary measure. Contrary to Article 99 of the CCrP, the court did not specify how exactly it “had taken into account” the information on the applicant's personality. Contrary to Article 109 of the CCrP, the court did not specify in its decision the term of the detention. The Moscow City Court was partial because in its decision of 23 July 2003 it extended, on its own initiative, the reasons in favour of the detention originally cited by the Basmannyi Court. Contrary to Article 109 of the CCrP, the Basmannyi Court extended, without any valid reasons, the applicant's detention even though by that time the preliminary investigation had ended, and the applicant could no longer interfere with witnesses and evidence.

3.  The applicant further complained under Article 5 § 1 (c) that from 31 March to 6 April 2004 his detention was not based on any judicial decision, and from 6 to 16 April 2004 on a reasoned judicial decision. The applicant relied in this complaint on the case of Baranowski (see Baranowski v. Poland, judgment of 28 March 2000, Reports of Judgments and Decisions 2000-III).

4.  The applicant complained under Article 5 § 3 of the Convention that there were no legitimate grounds for keeping him in custody. The domestic courts did not substantiate that he might interfere with the course of justice.

5.  The applicant complained under Article 5 § 4 of the Convention as follows.

(a)  The hearings before the Basmannyi Court of 3 July and 26 December 2003 were held in private.

(b)  The applicant's lawyers were unable to participate in the hearing of 3 July 2003.

(c)  The Moscow City Court which examined the appeal against the decision of 3 July 2003 was biased because it cited additional reasons in favour of the applicant's detention.

(d)  The decision of 26 December 2003 did not cite any valid reasons for retaining the applicant in custody.

(e)  It was not until 9 February 2004 that the Moscow City Court examined the applicant's appeal against the decision of 26 December 2003. It was not until 9 June 2004 that the Moscow City Court examined the applicant's appeal against the decision of 6 April 2004.

(f)  The applicant was not called to the hearing of 8 June 2004.

6.  The applicant complained that the restriction of the time for studying the prosecution files breached his right to defence guaranteed by Article 6 § 3 (b) of the Convention.

7.  The applicant complained under Article 34 that the searches of his lawyers and the refusal of their visits to prison hindered his right of individual petition guaranteed by Article 34 of the Convention.

8.  The applicant complained under Article 1 of Protocol No. 1 that the authorities arbitrarily persecuted YUKOS and were determined to ruin it financially.

9.  Lastly, the applicant complained under Article 13 that he could not defend YUKOS' interests because domestic courts were partial and because, being detained, he was unable personally to participate in the proceedings concerning YUKOS.

THE LAW

1.  The applicant claimed that in view of his poor health his detention on remand contradicted Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

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.

2.  The applicant complained under Article 5 § 1 (c) that his detention on remand was “unlawful” because it had been ordered in breach of domestic law. Article 5, in so far as relevant, 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; ...”

(a) General principles

The Court reiterates that the words “in accordance with a procedure prescribed by law” and “lawful” refer essentially to domestic law. They state the need to follow the procedure laid down therein and to observe the substantive rules of the national law (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, §§ 39, 45).

It is in the first place for the national authorities, particularly the courts, to interpret and apply internal law, even in those fields where the Convention “incorporates” the rules of that law: in the nature of things they are particularly qualified to settle the issues arising in this connection (see Winterwerp, cited above, § 46).

This, however, does not prevent the Court retaining, in cases where the Convention refers to domestic law, a certain jurisdiction to control the manner in which the national authorities interpret and apply domestic law. In particular, it is the Court's responsibility to satisfy itself that a legal basis existed and that domestic law has not been interpreted or applied in an arbitrary manner, since in a democratic society subscribing to the rule of law no arbitrary detention can ever be regarded as “lawful” (see Winterwerp, cited above, § 39).

(b) Application to the present case

First, the Court observes that the purpose of the applicant's detention was to bring him before the competent legal authority on suspicion of having committed an offence. The applicant was arrested by the police as a criminal suspect, charged, and the next day delivered to a judge. The detention order of 3 July 2003 was issued by the Basmannyi Court—the judicial authority competent, pursuant to Article 108 of the CCrP, to deal with the matter. It also appears that the procedural time-limits and formalities established by the CCrP have been complied with. The detention order referred to evidence gathered in the course of the investigation whereby it had been found that the applicant had fraudulently gained control over a private company and refused to comply with a court judgment. The order was later reviewed on appeal by the Moscow City Court which found the detention lawful and justified. There is nothing in the reasoning of the domestic authorities which could be regarded as arbitrary or unreasonable, or as lacking a factual basis.

Secondly, in so far as the applicant complains that the CCrP has been breached because there were no grounds to apply a precautionary measure as severe as detention, the Court finds it more appropriate to deal with this matter in the light of the provision under which it falls in any event to be dealt with, namely Article 5 § 3 of the Convention.

In view of the above, the Court finds no arbitrariness in the decisions to detain the applicant on remand.

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

3.  The applicant further complains under Article 5 § 1 (c) of the Convention that from 31 March until 6 April 2004 his detention was not based on any judicial decision.

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 complained under Article 5 § 3 of the Convention that there were no valid reasons to remand him in pre-trial custody. Article 5, in so far as relevant, reads as follows:

“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)  General principles

The Court reiterates that a person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, as a classic authority, Wemhoff v. Germany, judgment of 27 June 1968, Series A no. 7, § 12; Yagci and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 52).

The Convention case-law has developed four basic acceptable reasons for refusing bail: the risk that the accused will fail to appear for trial (see Stögmüller v. Austria, judgment of 10 November 1969, Series A no. 9, § 15); the risk that the accused, if released, would take action to prejudice the administration of justice (see Wemhoff, cited above, § 14) or commit further offences (see Matznetter v. Austria, judgment of 10 November 1969, Series A no. 10, § 9) or cause public disorder (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, § 51).

The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had in particular to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (see W. v. Switzerland, judgment of 26 January 1993, Series A no. 254-A, § 33 with further references).

(b)  Application to the present case

In the first place, the Basmannyi and Moscow City Courts explained the need of detaining the applicant by the possibility that he might fail to appear for trial. They reached this conclusion, inter alia, due to the fact that the applicant had property, bank accounts and business relations abroad and might emigrate. The applicant could easily cross the border since he had valid travel documents. In the Court's opinion, these facts alone do not irrefutably substantiate the risk of the applicant absconding. But given that the applicant faced serious charges punishable with over 2 years' imprisonment, one could reasonably surmise that “the consequences and hazards of flight would seem 
to him to be a lesser evil than continued imprisonment” (see Stögmüller v. Austria, judgment of 1602/62, Series A no. 9, § 15). The Court finds that this ground of the detention was not devoid of merit.

Secondly, the domestic courts suspected that the applicant might destroy evidence and interfere with witnesses. They especially stressed that the applicant had committed the imputed offences in his professional capacity as a company manager, that he retained this position and the authority attached to it, and therefore could urge the witnesses to give false testimony. The Court finds that this ground of the detention was not devoid of merit either.

Thirdly, the domestic courts suspected that the applicant might continue his criminal activity if remained at large. The Court notes, however, that the domestic courts did not advance any arguments that would have shown that the danger was “plausible” (see Clooth v. Belgium, judgment of 12 December 1991, Series A no. 225, § 40).

Nevertheless, assessing the reasons invoked by the Russian authorities as a whole and having regard to the overall length of the applicant's detention, the Court accepts that the Russian authorities did not fail to give sufficient and relevant justification for the applicant's continued detention.

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

5.  The applicant next complained under Article 5 § 4 of the Convention about a number of procedural defects in the proceedings concerning his detention on remand. Article 5, in so far as relevant, 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 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.  The applicant complained under Article 6 § 3 (b) that he was not given enough time to study the prosecution files. Article 6, in so far as relevant, reads as follows:

“Everyone charged with a criminal offence has the following minimum rights:

...

(b)  to have adequate time and facilities for the preparation of his defence; ...”

The Court reiterates that the specific guarantees laid down in Article 6 § 3 exemplify the notion of fair trial in respect of typical procedural situations which arise in criminal cases, but their intrinsic aim is always to ensure, or contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Article 6 § 3 are therefore not an end in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings (see Can v. Austria, no. 9300/81, Commission's report of 12 July 1984, Series A no. 96, § 53).

The Court notes that the trial is still pending before the domestic courts. It cannot on that account speculate on the outcome of the proceedings, less so on the question whether the proceedings will be conducted in a manner which respects the requirements of a fair procedure. The Court considers that the alleged prejudice to the applicant's defence must also be seen in the context of the fairness of the proceedings as a whole and it cannot, at this stage, pronounce on this issue from the standpoint of Article 6 of the Convention.

For the above reasons, the Court finds that the complaint is premature and must be rejected pursuant to Article 35 § 4 of the Convention.

7.  The applicant alleged, with reference to Article 34 of the Convention, that the authorities hindered his right of individual petition to the Court. Article 34, reads as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The applicant's allegation rests on three incidents: two searches of his lawyer, Mr Baru, during his visits to Remand Centre IZ-77/1, and a refusal by the prison administration to let another lawyer, Ms Liptser, to visit the applicant.

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.

8.  The applicant complained under Article 1 of Protocol No. 1 about the financial and legal harassment of YUKOS by the State. Article 1 of Protocol No. 1 reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court notes that the applicant's complaint is based exclusively on the proposition that the alleged violation of YUKOS' rights had adversely affected his own financial interests. The applicant considered that the financial losses sustained by the company were to be regarded as his own, and that he was therefore a victim, albeit indirectly, of the alleged violation. In other words, the applicant sought to have YUKOS' “corporate veil” pierced in his favour (see Agrotexim and Others v. Greece, judgment of 24 October 1995, Series A no. 330-A, § 62).

In this connection, the Court reiterates that the piercing of the “corporate veil” or the disregarding of a company's legal personality will be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation (see Agrotexim and Others, cited above, § 66).

In the case at hand there is no such indication. In fact, YUKOS has already lodged a separate application with the Court on 23 April 2004. The complaints made by the company on its own behalf repeat, in broad lines, the applicant's allegations.

Furthermore, the applicant has not submitted any evidence to show that he is indeed a shareholder of YUKOS. Nor has he substantiated any personal material loss linked to the events surrounding the company.

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

9.  Lastly, the applicant complained under Article 13 of the Convention that there was no way for him to defend YUKOS' rights in Russia. Article 13 reads 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 has found above that the applicant had no standing to rely on the substantive Convention right in respect of which a remedy is sought. Accordingly, the applicant has no standing under Article 13 either.

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

For these reasons, the Court by a majority

Decides to adjourn the examination of the applicant's complaints concerning his alleged ill-treatment, the lack of legal grounds for his detention from 31 March to 6 April 2004, the procedural defects of the hearings concerning his detention, and the alleged hindrance in the communication with the Court;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

1 Information submitted on request of judge-rapporteur pursuant to Rule 49 § 2 (a) of the Rules of Court.


LEBEDEV v. RUSSIA DECISION


LEBEDEV v. RUSSIA DECISION