FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45100/98 
by Igor PANCHENKO 
against Russia

The European Court of Human Rights (Fourth Section), sitting on 16 March 2004 as a Chamber composed of

Sir Nicolas Bratza, President
 Mr M. Pellonpää
 Mrs V. Strážnická
 Mr R. Maruste,

Mr A. Kovler
 Mr S. Pavlovschi
 Mr L. Garlicki, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 26 May 1998,

Having regard to the partial decision of 10 October 2000,

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, Igor Vladilenovich Panchenko, is a Russian national who was born in 1962 and lives in St. Petersburg. He is represented before the Court by Mr R. Karpinskiy, a lawyer with the International Protection Centre in Moscow. The respondent Government are represented by their Agent, 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.

1.  The applicant's arrest and placement in custody

On 29 August 1995 the North-Western transport prosecutor's office instituted criminal proceedings against several police officers of the St. Petersburg transport police department where the applicant, in the rank of police major at that time, held the position of senior operational officer. The investigation established that the applicant had colluded with other police officers to detain individuals who had just arrived in St. Petersburg under the pretext of an identity check and to misappropriate their money.

On 31 August 1995 the applicant was arrested. On the following day the acting prosecutor of the North-Western transport prosecutor's office authorised the applicant's detention on remand for two months. The applicant was placed in pre-trial detention facility no. 1 of St. Petersburg.

On 7 September 1995 the applicant was charged with criminal offences under Articles 144 § 2 (concerted theft), 145 § 3 (concerted large-scale robbery), 148 § 3 (large-scale extortion) and 170 § 1 (abuse of power or office) of the RSFSR Criminal Code, committed on several occasions between 1992 and 1995, in collusion with two other police officers.

On 27 October 1995 and 28 February 1996 the North-Western transport prosecutor and a deputy Prosecutor General, respectively, extended the applicant's detention on remand until 29 April 1996 (this date is indicated elsewhere as 27 or 28 April). The extensions were granted on the following grounds: the applicant was charged with a serious criminal offence; as a police officer the applicant could obstruct investigation; the applicant could flee from justice, including by leaving Russia, because his parents lived in Ukraine and because the applicant was not married and had no family in Russia.

On unspecified dates the applicant requested a court to review the lawfulness of his detention on remand. On 9 October 1995 and 5 May 1996 the Oktyabrskiy District Court of St. Petersburg examined the applicant's requests and confirmed the lawfulness of his detention and its extensions until 29 April 1996. In support of its conclusions the court referred to the complexity of the charges against the applicant and his co-defendants and the need to perform many investigative actions, including missions outside Russia.

2.  Proceedings before the trial court

(a)  Preparation for examination of the merits

On 27 April 1996 the investigation was completed and the bill of indictment was served on the applicant and his lawyer.

On 18 June 1996 the case was referred to the Smolninskiy District Court of St. Petersburg for trial.

On 24 July 1996 the Smolninskiy District Court listed the first hearing for 7 August 1996. The court refused the applicant's request for release pending trial and ordered him to remain in custody.

On 12 September 1996 the Smolninskiy District Court rejected the applicant's request for release pending trial. The court ruled that the detention had been ordered lawfully and in the light of the gravity of the charge against the applicant no reasons for his release could be established. The hearing was adjourned until 9 October 1996 because witnesses and victims failed to appear.

On 9 October 1996 the Smolninskiy District Court found that the bill of indictment was incomplete and remitted the case to the prosecutor's office for additional investigation. The court held that the applicant was to remain in custody because the detention had been lawfully authorised and extended and there was no reason to release the applicant “on account of the information about his personality and the extent of public danger that the criminal offences which he was charged with represent[ed]”. Both the applicant and the prosecutor lodged appeals against this decision.

On 24 December 1996 the St. Petersburg City Court quashed the decision of 9 October 1996 and ordered the Smolninskiy District Court to proceed to the examination of the merits of the case. The court ordered the applicant to remain in custody pending trial, without giving any reasons.

On 24 February, 31 March and 15 September 1997 the Smolninskiy District Court dismissed the applicant's requests for release from custody, each time referring generically to the gravity of the charges against him and to his personal characteristics. The applicant could not appeal against the court orders concerning the lawfulness of his continued detention because the then current RSFSR Code of Criminal Procedure vested the right to appeal only in prosecutors.

(b)  Examination of the merits

According to the Government, on 10 February 1997 the applicant refused to go to the court and the hearing was adjourned until 24 February. The applicant refutes this allegation. He contends that as a detainee he had no choice whether to be escorted to the court house or not.

The parties agree that subsequent hearings were held on 24 and 25 February, 31 March and 1 April 1997.

On 15 September 1997 the Smolninskiy District Court granted the applicant's request for additional time to read the case file and transcripts of the court hearings. The Government allege that at that hearing the applicant prevented the court from examining witnesses and victims. The applicant contests this allegation as not supported by any documents. The next hearing was fixed for 11 December.

On 22 December 1997 (11 December, according to the Government) the applicant challenged the presiding judge alleging that he had had an intimate relationship with her. The challenge was dismissed as unsubstantiated. The hearing was then adjourned until 9 February 1998 because the applicant fell ill.

Subsequent hearings in the Smolninskiy District Court took place on 9, 11 and 12 February 1998.

On 12 February 1998 (8 February, according to the Government) the Smolninskiy District Court suspended the proceedings and ordered a forensic psychiatric examination of the applicant.

On 5 May 1998 the Convention entered into force in respect of the Russian Federation.

On 22 May 1998 the experts found the applicant to be of sound mind at the current time and at the time when the incriminated acts were committed. On 1 July 1998 the hearings were resumed.

On 17 July 1998 the Smolninskiy District Court refused the applicant's request for release from custody. On the same day the Smolninskiy District Court delivered a judgment in the applicant's case. The court found the applicant guilty on most counts and sentenced him to six years' imprisonment, including the time already served, and ordered forfeiture of the applicant's property.

3.  Proceedings before the appeal court

The applicant appealed against the judgment to the St. Petersburg City Court.

On 26 October 1998 the Smolninskiy District Court advised the applicant that the appeal hearing would take place on 17 November 1998. However, on 11 November 1998 (29 October, according to the Government) the St. Petersburg City Court returned the case-file to the Smolninskiy District Court because the applicant had not had adequate time and facilities to study it after the judgment had been given.

The Government submit that between November 1998 and January 1999 the Smolninskiy District Court “took measures” to examine the applicant's requests. They have not provided any details about the nature of these measures. The applicant disagrees. He contends that during that period the Smolninskiy District Court did not take any steps to grant him access to the file and it did not make any decisions on his requests. He further indicates that he was first granted access to the requested materials on 22 February 1999, after seven months of procrastination on the part of the court, and then he only had access to the file for 21 non-consecutive days until 8 April 1999.

On 18 April 1999 the applicant filed an addendum to his points of appeal. The appeal hearing was listed for 11 May 1999, but later adjourned until 3 June.

On 3 June 1999 the St. Petersburg City Court quashed the judgment of 17 July 1998 on procedural grounds and remitted the case for a new examination. The court ruled that the applicant was to remain in custody pending a new trial without giving any reasons for the continuing detention.

On the same day the City Court issued a “special finding” (частное определение) acknowledging that the length of the trial had been excessive and ordered the President of the Smolninskiy District Court to pay special attention to this fact and to take measures to remedy the situation.

4.  Additional investigation of the case

(a)  First re-opening of investigation and review of the lawfulness of detention

On 26 July 1999 the Smolninskiy District Court examined the prosecutor's application to return the case for additional investigation to the North-Western transport prosecutor's office in order to remedy certain procedural defects. The applicant and his counsel agreed with the prosecutor's application and filed a request for the applicant's release arguing that there were no grounds justifying his continuing detention.

The court granted the application and remitted the case for additional investigation, but refused the request for release on the following grounds: the applicant's detention had been extended in accordance with the law, he was charged with a serious criminal offence, he could obstruct the additional investigation and trial or flee from justice, including by leaving Russia.

On 29 July and 1 August 1999 the applicant and his lawyer lodged appeals against the decision of the Smolninskiy District Court.

According to the Government, the St. Petersburg City Court had originally fixed the hearing date for 24 August 1999. However, the applicant's lawyer failed to appear and the hearing was adjourned until 31 August. On 31 August 1999 the applicant informed the court that his lawyer was on leave and requested an adjournment of the hearing. His request was granted and the new date was fixed for 28 September 1999. It appears that on 28 September 1999 the hearing before the St. Petersburg City Court took place. According to the Government, the court established that it needed the materials in the case file that was at that time sitting in the North-Western transport prosecutor's office pending completion of the additional investigation. The proceedings were suspended until such time as the case file was made available to the court.

On 21 September 1999 the North-Western transport prosecutor's office accepted the case for additional investigation. On 28 September 1999 the acting North-Western transport prosecutor set a time-limit for additional investigation and extended the applicant's detention for one month, i.e. until 28 October 1999.

On 18 October 1999 the Smolninskiy District Court informed the applicant that his case-file was with the North-Western transport prosecutor's office for additional investigation.

On 19 October 1999 the applicant complained to the prosecutor's office that the re-opening of investigation had been unlawful because his appeal against the decision of 26 July 1999 was still pending.

On 26 October 1999 the North-Western transport prosecutor's office reversed the decision of 28 September 1999 on the ground that the court decision of 26 July 1999 had not yet become final and the appeal was pending. On the same day the case-file was forwarded to the Smolninskiy District Court to be joined with the appeal and sent to the St. Petersburg City Court.

On 2 November 1999 the St. Petersburg City Court upheld the decision of 26 July 1999. The City Court scrutinised the applicant's arguments concerning the entire period of his detention on remand and confirmed that he had been lawfully arrested in 1995 and in subsequent periods his detention on remand had been lawfully extended in accordance with the applicable provisions of the Code of Criminal Procedure. The City Court acknowledged that there were no statutory time-limits for a defendant's detention after the case had been referred to a trial court. However, in the City Court's opinion, a trial court's failure to comply with statutory time-limits for fixing a hearing date and for opening the proceedings could not warrant the applicant's release, yet such failure could give rise to a “special finding” such as the one that had been issued on 3 June 1999. The decision concluded as follows:

“When remitting the case for additional investigation and deciding on the preventive measure [for the applicant] [the court] correctly had regard to the absence of grounds to lift the preventive measure in the form of holding in custody taking into account that [the applicant], if released from custody, might flee from investigation and justice, obstruct the additional investigation or trial; [the court] correctly had regard to the information on [the applicant's] personality and the nature of the charge against him.”

(b)  Second re-opening of the investigation

On 17 November 1999 the North-Western transport prosecutor's office accepted the case for investigation and requested an extension of the applicant's detention. The request was granted by the acting North-Western transport prosecutor on the same day, for a period of one month, i.e. until 17 December 1999.

The applicant appealed against the extension order. He argued, in particular, that it had been the second time that his detention in connection with the additional investigation had been authorised for one month.

On 26 November 1999 the Oktyabrskiy Court of the Admiralteyskiy District of St. Petersburg confirmed the order of 17 November 1999. The court had regard to the gravity of the charges and the possibility of the applicant's interfering with the investigation or absconding. As to the first one-month period of detention, i.e. between 28 September and 28 October 1999, the court found that the order of 28 September had been reversed because the applicant's appeal was pending and therefore during that period the applicant's detention was before the St. Petersburg City Court.

On 17 December 1999 the bill of indictment was served on the applicant and his lawyer and they were given several hours to study the materials of the additional investigation. On the same day a prosecutor of the North-Western transport prosecutor's office refused the applicant's requests for release pending trial and for additional time to study the case-file.

On 20 December 1999 the case was referred to the Smolninskiy District Court for trial.

(c)  Third re-opening of the investigation and release from custody

On 30 December 1999 the Smolninskiy District Court again remitted the case to the prosecutor's office for additional investigation because the prosecutor failed to respect the applicant's right to study all of the case materials and not just new ones. The court confirmed that the applicant was to remain in custody. The court grounded the applicant's detention as before: the applicant was charged with a serious criminal offence, in view of his personal circumstances he could obstruct the investigation or flee from justice, including by leaving Russia. The applicant appealed against this decision.

On 29 February 2000 the St. Petersburg City Court quashed the decision of 30 December 1999 and ordered the applicant's release from custody against his undertaking not to leave the city. The court noted that the applicant had already spent more than four years in custody while procedural delays in the examination of the case could not be attributed to his conduct. The court noted that the applicant had a permanent residence and family, that he had received positive references at his former place of work, that he had no criminal record and that there were no indications that the applicant would abscond or interfere with the establishment of the truth. On the same day the court also quashed the decision of the Oktyabrskiy District Court of 26 November 1999 and remitted the matter for a new examination because of a procedural defect in the trial record.

On or about 29 February 2000 the applicant was released from custody.

It appears that on 6 March 2000 the North-Western transport prosecutor's office accepted the case for additional investigation ordered by the Smolninskiy District Court on 30 December 1999. The investigation was completed on 23 August 2000 and the case was referred to the trial court.

On 13 April 2000 the Oktyabrskiy Court examined the applicant's complaint concerning the lawfulness of his detention after 21 September 1999. The applicant supplemented his initial complaint with a request to declare inadmissible all evidence obtained by the investigation between 21 September and 26 October 1999 and between 17 November and 20 December 1999. The court held that the order of the prosecutor's office of 26 October 1999, by which the order of 28 September 1999 had been reversed, amounted to an admission of the fact that the investigation between 21 September and 26 October 1999 had been unlawful. As to the admissibility of evidence obtained during that period, the court referred this issue to the trial court.

5.  Developments after the communication of the application on 10 October 2000

(a)  Review of the lawfulness of the applicant's detention in 1996

On 5 December 2000 the St. Petersburg City Court examined the applicant's appeal against the decision of 5 May 1996. The applicant also challenged certain deficiencies of the orders authorising his initial detention and subsequent extensions: missing signatures, duplicates of documents that were different from originals, and lack of competence of prosecutors to authorise his detention. The court upheld the decision of 5 May 1996. It confirmed the validity of the extension of the applicant's detention authorised by the deputy Prosecutor General. The court also addressed the applicant's arguments and ruled that the alleged procedural deficiencies had not impaired the validity of the detention orders.

(b)  Fourth reopening of the investigation

On 10 January 2001 the Smolninskiy District Court, at the applicant's request, ordered the case to be remitted for additional investigation. The court established that the applicant had not been given adequate time to have access to the case file and that the investigator had failed to decide on his requests. The court referred the remainder of the applicant's complaints concerning admissibility of evidence to the trial court. Following the appeal of the North-Western transport prosecutor against the decision, on 13 February 2001 it was upheld by the St. Petersburg City Court.

It appears that at that time the North-Western transport prosecutor's office was undergoing reorganisation, its employees were transferred to the St. Petersburg city prosecutor's office. On 26 March 2001 the applicant was advised about a transfer of his case to the St. Petersburg city prosecutor's office. On 19 April 2001 a senior investigator with the anti-corruption and economic crimes unit of the Department for especially important cases of the St. Petersburg prosecutor's office accepted the case for investigation.

On the same day a deputy prosecutor of St. Petersburg authorised an extension of the investigation for one additional month.

On 11 May 2001 a deputy Prosecutor General authorised a further extension until 19 July 2001, i.e. for a total of 13 months and 23 days.

On 17 July 2001 the first deputy Prosecutor General extended the investigation until 19 September 2001, i.e. for a total of 15 months and 23 days.

On 18 September 2001 the first deputy Prosecutor General authorised an extension until 19 November 2001, i.e. for a total of 19 months and 23 days.

(c)  Review of the lawfulness of extensions of additional investigation

The applicant's lawyer appealed to a court against the orders to extend the period for the investigation. He complained about the excessive length of the proceedings and challenged the lawfulness of the extensions of the investigation alleging that the case was of average complexity and that there were no exceptional circumstances as required by the domestic law to justify such a lengthy investigation. He also requested the court to find a violation of Article 6 § 1 of the Convention in that the applicant had been denied a fair trial within a reasonable time.

On 22 October 2001 the Oktyabrskiy Court rejected the complaint. On 27 November 2001 the St. Petersburg City Court, on the applicant's appeal, quashed and remitted that decision for a new examination. The court found that the first instance court had failed to take into account certain periods of the pre-trial investigation.

On 18 May 2002 the Oktyabrskiy Court examined the matter de novo and dismissed the complaint again. As regards the authorities' compliance with the “reasonable time” requirement, the court pronounced as follows:

“...having regard to the fact that the court did not establish any violations of the rules of criminal procedure in the extensions of the time-limit for the preliminary investigation to 13 months and 23 days, 15 months and 23 days, and 17 months and 23 days, and taking into account that the contested extension orders were justified, the court considers that the extensions of the said time-limits were lawful and justified. In this connection, the court also considers that the additional investigation was completed within a reasonable time because the additional investigation was needed [sic] and it did not violate the defendant's right under Article 6 § 1 of the ECHR... This conclusion of the court is also grounded on the fact that the overall duration of the preliminary investigation was 17 months and 23 days, of which seven months were used for an additional investigation by the St. Petersburg prosecutor's office. The latter time period, as established in the court hearing, was required to carry out many investigative actions in the light of the substantial size of the criminal case, the remoteness [in time] of the criminal offences and the extent of the charges, and it was reasonable and necessary for the establishment of the truth and, in particular, for the protection of the victims' rights.”

On 10 September 2002 the St. Petersburg City Court, on the applicant's appeal, upheld the decision of 18 May 2002.

6.  Second trial before the first instance court

On 27 September 2001 the applicant was charged with repeated and concerted bribery, fraud, theft, robbery, abuse of power, and document forgery. In particular, the applicant was charged with illegal detention of persons whom he had apprehended for identity checks at the railway station, taking or stealing money and valuables from them and using forged documents to obtain social benefits. On 19 October 2001 the bill of indictment, with some textual amendments, was served again on the applicant.

Subsequently the applicant was given access to the case file. It appears the applicant and his lawyer had access to the case file for the first time on 5 November 2001.

On 11 April 2002 an investigator with the St. Petersburg city prosecutor's office established that the applicant had intentionally procrastinated in reading the file and ordered that the reading be completed by 1 June 2002. On 3 June 2002 the investigator refused the applicant's request for additional time for access to the file.

On 17 June 2002 the case file comprising 20 volumes was forwarded to the St. Petersburg City Court for trial.

On 4 February 2004 the St. Petersburg City Court made a decision to close the criminal case against the applicant (постановление о прекращении уголовного дела). Several charges against him were dropped by the prosecution and, as to the remainder, the court established that the prosecution was time-barred. The decision was not appealed against and on 17 February 2004 it became final.

B.  Relevant domestic law

Preventive measures

The Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (“the old Code”) of 27 October 1960 (effective until 30 June 2002) listed as “preventive measures”, inter alia, an undertaking not to leave a specified place and placement in custody (Article 89). Similar provisions are contained in the new Code of Criminal Procedure of the Russian Federation of 18 December 2001 that became effective on 1 July 2002 (“the new Code”). Unless specified otherwise, all Article numbers below refer to the old Code that was in force at the material time.

Grounds for ordering detention on remand

A decision to order detention on remand could only be taken by a prosecutor or a court (Articles 11, 89 and 96). In making this decision the concerned authority was to consider whether there were “sufficient grounds to believe” that the accused would flee from investigation or trial or obstruct the establishment of the truth or re-offend (Article 89), as well as to take into account the gravity of the charge, information on the personality of the accused, his (her) profession, age, state of health, family status and other circumstances (Article 91). Until 14 March 2001, detention on remand was mandatory if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment or if there were “exceptional circumstances” in the case (Article 96). On 14 March 2001 the Code was amended to provide for mandatory detention on remand if the charge carried a sentence of at least two years' imprisonment or if the defendant had previously defaulted or if he had no permanent residence in Russia or if his identity could not be ascertained. The amendments of 14 March 2001 also repealed the provision that permitted the defendant's placement in custody on the sole ground of dangerousness of the criminal offence imputed to him.

A prosecutor's order, or a court decision, ordering detention on remand was to be reasoned and justified (Article 92). The accused was to be informed of the detention order and explained the procedure for lodging an appeal against it (Article 92).

Time-limits for detention on remand

Types of detention on remand

Both the old and the new Codes distinguish between two types of detention on remand: one is “pending the investigation”, i.e. when an authorised agency – the police or a prosecutor's office – undertake investigative measures, and the other is “before the court” (or “pending the trial”), i.e. when a court examines the case. Although there is no logistical difference between them (the detainee is held in the same facility), the calculation of the time-limits is different.

Time-limits for detention “pending the investigation”

After arrest the person was placed in custody “pending the investigation”. The maximum permitted period of the detention “pending the investigation” was two months but it could be extended for up to eighteen months in “exceptional circumstances”. Extensions were authorised by prosecutors of ascending hierarchical levels, up to the Prosecutor General of the Russian Federation. No extensions beyond eighteen months were permitted (Article 97).

The time-limit of detention “pending the investigation” was calculated until the day when the investigation was considered completed and the defendant was given access to the case file (Articles 97, 199, 200 and 201). The access was to be granted no later than one month before the authorised detention period expired (Article 97). If the defendant needed additional time to study the case-file, a judge acting on a request by a prosecutor could grant an extension of the defendant's detention on remand until such time as the reading of the file was completed, but for no longer than six months.

The case could also be remitted for “additional investigation” by the trial court if it established procedural defects that could not be remedied during the trial. In such case the person's detention was again “pending the investigation” and the running of the time-limits “pending the investigation” resumed. If, however, the case was remitted for additional investigation, but the investigators had already used up all the time authorised for the detention “pending the investigation”, a supervising prosecutor could nevertheless extend the detention period for one additional month starting from the day it received the case. Any subsequent extension could only be granted if the detention “pending the investigation” had not exceeded eighteen months.

Time-limits for detention “before the court”

Once the investigation was considered to be complete and the defendant received the bill of indictment and finished reading the case file, the file was transferred to a trial court. From that day the defendant's detention was “before the court” (or “pending the trial”). In the old Code there was no time-limit for the detention “pending the trial”.

Proceedings to examine the lawfulness of detention

During detention “pending the investigation”

The detainee, his (her) counsel or representative could challenge the detention order and any subsequent extension orders to a court (Article 2201). The judge was required to review the lawfulness and justification of a detention or extension order no later than three days from receipt of the relevant materials. The review was to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee was to be summoned and the review in his absence was only permissible in exceptional circumstances when the detainee waived his right to be present of his own initiative. The judge could either dismiss the challenge or revoke the detention on remand and order the detainee's release. A judge's decision was to be reasoned (Article 2202).

During the trial

When a judge received a case-file and before the trial began, the judge had to decide, in particular, whether the defendant was to stay in custody or to be released pending trial (Article 222 § 5) and to rule on the defendant's request for release, if submitted (Article 223). If the request was refused, it could be renewed after the start of the trial (Article 223).

At any moment during the trial the court could order, amend or revoke any preventive measure, including detention on remand (Article 260). Such decision was to be delivered in the form of a procedural order signed by all judges on the bench (Article 261).

Pursuant to the ruling of the Constitutional Court of 2 July 1998, all procedural orders made during the trial and having the effect of extending the applicant's detention on remand could be appealed against to a higher court, separately from the judgment on the merits.

Time-limits for trial

The case examination was required to start no later than fourteen days after the judge issued a procedural order fixing a hearing date (Articles 2231 and 239). Duration of the trial was not limited in time.

The appeal court was required to examine an appeal against the first-instance judgment within ten days from its receipt. In exceptional circumstances or in complex cases or in the proceedings before the Supreme Court of the Russian Federation this time-limit could be longer, up to two months (Article 333). No possibility of further extensions was provided for.

COMPLAINTS

1.  The applicant complains under Articles 5 § 3 and 6 § 1 of the Convention about the excessive length of his detention on remand and of the criminal proceedings against him.

2.  The applicant complains under Article 5 § 4 of the Convention that (a) between 3 June 1999, when the City Court quashed his conviction and ordered him to remain in custody, and 26 July 1999, when the trial court examined his request for release, he was unable to take proceedings by which the lawfulness of his detention could be examined, and (b) his appeal against the extension of his detention authorised by the trial court on 26 July 1999 was not examined until 2 November 1999 which did not meet the requirement of  “speediness”.

THE LAW

1.  The applicant complains under Article 5 § 3 of the Convention that the length of his detention on remand was excessive. The relevant parts of Article 5 provide as follows:

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

...

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

...

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial...”

The Government submit that the period of the applicant's detention on remand to be taken into account began 5 May 1998 when the Convention entered into force in respect of the Russian Federation. They claim that the applicant's detention on remand was extended in accordance with the domestic law and the courts appropriately had regard to the gravity of the charges against him and to the possibility of his fleeing from criminal prosecution because he was single and his parents lived outside Russia. Furthermore, there were reasons to believe that the applicant might collude with others or obstruct the establishment of the truth because he had allegedly attempted, even while in detention, to interfere with questioning of victims and witnesses and because he claimed to have been falsely accused and challenged the statements by victims and witnesses as dishonest. Finally, the Government allege that the applicant had on many occasions contributed to the length of his detention by lodging various requests and complaints (making up seven binders in the case-file) that the domestic courts were required to examine and make reasoned decisions upon.

The applicant considers that the Court has competence ratione temporis to review the entire period of his detention on remand starting from 31 August 1995 because the final decision concerning the lawfulness of an extension of his detention until 29 April 1996 was made by the St. Petersburg City Court on 5 December 2000. The applicant disputes the reasons for his continued detention invoked by the Government as not supported by any facts. There are no indications that he had ever attempted to exercise pressure on victims or witnesses; the risk of collusion was excluded because he was not charged with criminal offences committed by a group; there was no real risk of re-offending since he had no criminal record. He challenged witnesses and lodged various complaints and requests in the exercise of his lawful right to defend himself, and the authorities were responsible for failures to examine them with due diligence. Finally, the applicant contends that the very grounds on which his continued detention had been based were found to be insufficient by the decision of the St. Petersburg City Court on his release.

The Court considers that it has competence ratione temporis to consider the period which elapsed between the ratification of the Convention by the Russian Federation (5 May 1998) and the applicant's release from custody (29 February 2000). However, when determining whether the applicant's continued detention after 5 May 1998 was justified under Article 5 § 3 of the Convention, it must take into account the fact that by that date the applicant, having been placed in detention on 31 August 1995, had already been in custody for more than two years and eight months (see Mansur v. Turkey, judgment of 8 June 1995, Series A no. 319-B, § 51).

Furthermore, the Court recalls that, in view of the essential link between Article 5 § 3 of the Convention and paragraph 1 (c) of that Article, a person convicted at first instance cannot be regarded as being detained “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”, as specified in the latter provision, but is in the position provided for by Article 5 § 1 (a), which authorises deprivation of liberty “after conviction by a competent court” (see Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI; Barfuss v. the Czech Republic (dec.), no. 35848/97, 7 September 1999). Accordingly, the applicant's detention from 17 July 1998, the date of his original first-instance conviction, to 3 June 1999, the date on which that conviction was quashed and his case remitted, cannot be taken into account for the purposes of Article 5 § 3. The Court consequently finds that the period to be taken into consideration consisted of two separate terms, the first lasting from 5 May 1998 (on which date the applicant had been in detention for two years and eight months) to 17 July 1998 and the second from 3 June 1999 to 29 February 2000, and amounted to eleven months and eight days.

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

2.  The applicant complains under Article 5 § 4 of the Convention that (a) between 3 June and 26 July 1999 he was not able to initiate proceedings for examination of the lawfulness of his detention and (b) the hearing on his appeal against the court decision of 26 July 1999 extending his detention on remand did not take place until three months later, on 2 November 1999.

Article 5 § 4 reads as follows:

“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.”

(a)  The Government submit that neither the applicant nor his lawyer filed any complaints concerning the lawfulness of detention or requests for release during the time period between 3 June and 26 July 1999 and that there were no circumstances that would have prevented them from doing so. They also note that during that time period the trial court received a large number of the applicant's complaints and requests concerning other matters.

The applicant does not dispute these statements.

The Court observes that the applicant's detention after 3 June 1999 derived its legal basis from the decision of the St. Petersburg City Court whereby the applicant's conviction was quashed, the case was referred back to the trial court and his detention was extended (see, a contrario, Stašaitis v. Lithuania, no. 47679/99, § 74, 21 March 2002). From that moment on it was open to the applicant, pursuant to Article 260 of the Code of Criminal Procedure, to petition the trial court for release. The possibility of such a course of action provided the applicant, at least in theory, with the right to take proceedings referred to in Article 5 § 4. In the absence of any statement from the applicant to the contrary, the Court sees no reason to doubt the Government's contention that the applicant did not file any request for release until 26 July 1999. On that day the applicant and his lawyer appeared before the trial court and requested his release on the ground that there were no valid reasons for his continued detention. Accordingly, it remains to be seen whether the procedure employed by the trial court on 26 July 1999 for examination of the applicant's request complied with the guarantees of Article 5 § 4.

The Court recalls that a court examining a challenge to detention must provide guarantees of a judicial procedure. Thus, the proceedings must be adversarial and must adequately ensure “equality of arms” between the parties, the prosecutor and the detained (see, as a recent authority, Migoń v. Poland, no. 24244/94, § 68, 25 June 2002, with further references). In the present case both the applicant and his legal aid counsel were present before the trial court on 26 July 1999 and, after the prosecutor made submissions to the court, they were afforded an opportunity to comment on them. The court examined the compliance of the applicant's continued detention with the procedural requirements of domestic law and relevance of the reasons invoked to justify it. The Court considers therefore that this review provided the guarantees of Article 5 § 4 of the Convention.

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

(b)  The Government accept that it took the domestic courts three months and six days to examine the applicant's appeal against the court decision of 26 July 1999 that had extended his detention on remand. However, they consider this time period reasonable because the period of one and a half months was attributable to the applicant's lawyer's failure to appear at the hearings of 24 and 31 August 1999 and the remainder of the time was required for a careful examination of the case materials making up 11 volumes at that time.

The applicant submits that the delays attributable to his lawyer's absence only occurred in August 1999. On 9 September 1999 he was advised that the appeal hearing was fixed for 28 September. However, the hearing did not take place on that date only because on 21 September 1999 the District Court had sent the case-file to the prosecutor's office for additional investigation and the prosecution did not return the file until 26 October 1999. Furthermore, the applicant interprets the admission contained in the decision of the Oktyabrskiy Court of 13 April 2000 to the effect that the investigation between 21 September and 26 October 1999 had been unlawful as a clear indication that the delays in that period were attributable to the authorities.

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

3.  The applicant complains under Article 6 § 1 of the Convention that the criminal charge against him has not been determined within a “reasonable time”. Article 6 § 1, in the relevant part, provides as follows:

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

The Government submitted that this complaint was premature because at the time their observations were filed with this Court (2 December 2003) the criminal proceedings against the applicant were still pending before the trial court.

The applicant disagreed. He submitted that his complaint about the excessive length of the criminal proceedings had been dismissed in the final instance by the St. Petersburg City Court on 10 October 2002 and no further appeal lay against it. The admissibility criteria were therefore satisfied.

The Court observes that, according to the latest information available to it, the criminal proceedings against the applicant were terminated by a final decision of 4 February 2004. In any event, it recalls the Convention organs' constant case-law to the effect that complaints concerning length of procedure can be brought before it before the final termination of the proceedings in question (see, e.g., Todorov v. Bulgaria (dec.), no. 39832/98, 6 November 2003, with further references). It follows that the Government's objection must be dismissed.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's complaints concerning the length of his detention on remand and of the criminal proceedings against him and the applicant's complaint concerning the speediness of review of the lawfulness of his detention;

Declares inadmissible the remainder of the application.

Michael O'Boyle Nicolas Bratza 
 Registrar President

PANCHENKO v. RUSSIA DECISION


PANCHENKO v. RUSSIA DECISION