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FIRST
SECTION
CASE OF KONONOVICH v. RUSSIA
(Application
no. 41169/02)
JUDGMENT
STRASBOURG
9
July 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kononovich v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
George
Nicolaou, judges,
and André Wampach, Deputy
Section Registrar,
Having deliberated
in private on 18 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41169/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Bogdan Ivanovich
Kononovich (“the applicant”), on 3 November 2002.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been subjected to
psychological and physical pressure while in police custody and that
his pre-trial detention had been unlawful and unreasonably long.
- On
17 April 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The Government objected to the joint examination of the
admissibility and merits of the application. Having examined the
Government's objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and is serving a prison sentence in
Izhevsk.
A. Arrest and detention pending investigation
- On
20 June 2000 the applicant and two other persons were
apprehended on suspicion of involvement in several incidents of
theft. The applicant was allegedly taken to a flat where the police
officers beat him up to make him confess to the crimes. On the next
day he was transferred to a temporary detention facility at a police
station. According to the applicant, the beatings continued on 21,
22, 23 and 26 June 2000.
- On
21, 22, 23 and 26 June 2000 in response to the applicant's
complaints of renal colic and pain in the lumbar area, the officer on
duty called an ambulance. The applicant was examined on each occasion
by a doctor, who did not find it necessary to take him to hospital.
The applicant did not tell the doctor or the officer on duty anything
as to what might have caused those pains. Nor did he say anything
about ill-treatment by the police.
- On
21 June 2000 the investigator ordered that the applicant's flat
be searched. On 23 June 2000 the police conducted the search.
- On
23 June 2000 the applicant's family retained a lawyer to
represent him during the investigation and trial. On 15 December
2000 the applicant's father was also admitted to represent him as a
lay defender.
- On
the same day the prosecutor of the Zapadniy Administrative Circuit of
Moscow authorised the applicant's detention. The court reasoned that
the applicant should remain in custody pending the collection of the
evidence necessary for the preparation of his indictment.
- On
30 June 2000 the applicant was charged with several counts of
theft. He denied any involvement in the crimes he was charged with.
- On
10 August 2000 the prosecutor granted the investigator's request
to extend the detention of the applicant and two other defendants
until 21 September 2000. The investigator reasoned that he
needed more time “to investigate additional criminal acts
committed by [the defendants], to join the criminal case-files, to
finalise the bill of indictment and to carry out other investigative
tasks in order to complete the preliminary investigation”.
- On
8 September 2000 the prosecutor granted the investigator's
request to extend the defendants' detention until 21 November
2000. The investigator reproduced verbatim the reasoning of his
previous request.
- On 12 October 2000 the Tverskoy District Court of
Moscow dismissed the applicant's application for release. The court
noted that the gravity of the charges alone could justify the
applicant's detention pending investigation and trial. It also
referred to the applicant's previous conviction and another pending
criminal investigation against him.
B. First set of criminal proceedings
- On 27 November 2000 the Nikulinskiy District
Court scheduled the first hearing of the matter for 8 December
2000. The court ruled that the applicant and two other defendants
should remain in custody pending trial. No time-limits or reasons
justifying the defendants' detention were indicated.
- Between
8 December 2000 and 14 June 2001 the court held twenty-one
hearings of the case. On twenty occasions the hearing was adjourned
due to the representatives of the defendants' failure to appear or
their need to study the case-file.
- On
14 June 2001 the District Court extended the applicant's
detention for three months. The court issued an order in respect of
the three defendants, reasoning that their release “might
impede a thorough, complete and objective examination of the case”.
On 13 August 2001 the Moscow City Court upheld the decision of
14 June 2001 on appeal.
- On
6 August 2001 the District Court found certain procedural
irregularities in the bill of indictment and remitted the case to the
prosecutor's office for their rectification. The court ordered that
all three defendants should remain in custody. On 6 September
2001 the Moscow City Court quashed the decision of 6 August 2001
on appeal and remitted the case for consideration to the District
Court. The City Court also held that the defendants should remain in
custody pending trial.
- On
11 October 2001 the District Court received the case-file and
scheduled the hearing for 25 October 2001. The court further
extended the detention of the three defendants for three months. The
court referred to the gravity of the charges against them and the
risk that they might impede the thorough, complete and objective
examination of the circumstances of the case. On 13 February
2002 the Moscow City Court quashed the decision of 11 October
2001 on appeal. The City Court held that there was no requirement as
a matter of law to decide on the applicant's detention at that point.
- On
5 December 2001 the applicant complained to the District Court
that he had been beaten up by police officers on 20, 21, 22, 23 and
26 June 2000. In support of his allegations, he submitted
medical certificates indicating that doctors from the emergency
response unit had been summoned by the officer on duty to examine
him.
- On
7 December 2001 the District Court found the applicant guilty as
charged.
- On
1 April 2002 the Moscow City Court quashed the judgment of
7 December 2001 and remitted the matter for fresh consideration.
The court noted, inter alia, that the trial court had failed
(1) to ensure the examination of several witnesses, instead relying
exclusively on their written statements and (2) to ensure
participation of the applicant's lay defender in the closing
arguments. The court indicated that the applicant should remain in
custody pending a new trial.
C. Second set of criminal proceedings
- On
15 April 2002 the Nikulinskiy District Court scheduled a new
hearing of the case for 23 April 2002.
- On 23 April 2002 the District Court dismissed the
defendants' applications for release. The court noted that all three
defendants were charged with a serious offence and, if released, they
“might interfere with the thorough, complete and objective
examination of the case”.
- On
17 May 2002 the Nikulinskiy District Court found the applicant
guilty as charged and sentenced him to nine years' imprisonment. The
court based its findings on the statements of witnesses who had
testified in court, including the applicant's co-accused, victims of
the crime, and forensic evidence. The court held that the applicant
was to serve his sentence in a correctional colony with strict
conditions of detention.
- On
9 September 2002 the Moscow City Court upheld the applicant's
conviction in substance on appeal, indicating that the applicant was
to serve his sentence in a correctional colony with normal conditions
of detention.
- It
appears that the applicant was sent to serve a prison sentence in a
correctional colony with strict conditions of detention. On
14 February 2005 he was transferred to a correctional colony
with normal conditions of detention.
- According
to the applicant, he challenged the lawfulness of his detention in
the colony with strict conditions of detention by lodging numerous
complaints with the prosecutor's office, department of corrections
and the court.
II. RELEVANT DOMESTIC LAW
- Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (Law of 27 October 1960, “the old CCrP”). From 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
A. Investigation of criminal offences
- The
old CCrP established that a criminal investigation could be initiated
by an investigator upon the complaint of an individual or on the
investigative authorities' own initiative when there were reasons to
believe that a crime had been committed (Articles 108 and 125). It
was incumbent on the investigative authorities, a prosecutor or a
court to accept and follow up on the allegations concerning a
criminal offence within three days of the complaint being lodged.
That time-limit could be extended up to ten days in exceptional
circumstances (Article 109). A prosecutor was responsible for the
general supervision of the investigation (Articles 210 and 211). He
or she could order a specific investigative action, transfer the case
from one investigator to another or order an additional
investigation. If there were no grounds to initiate a criminal
investigation, the prosecutor or investigator issued a reasoned
decision to that effect which had to be communicated to the
interested party. The decision was amenable to an appeal to a higher
prosecutor or to a court of general jurisdiction (Article 113).
B. Placement in custody and detention
1. Preventive measures
- “Preventive measures” or “restrictive
measures” include an undertaking not to leave a town or region,
a personal guarantee, bail and remand in custody (Article 89 of the
old CCrP, Article 98 of the new CCrP).
2. Grounds for remand in custody
- When
deciding whether to remand an accused in custody, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that he or she would abscond during the
investigation or trial or obstruct the establishment of the truth or
reoffend (Article 89 of the old CCrP). It must also take into account
the gravity of the charge, information on the accused's character,
his or her profession, age, state of health, family status and other
circumstances (Article 91 of the old CCrP, Article 99 of the new
CCrP).
- Before 14 March 2001, remand in custody was authorised
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 old CCrP was amended to permit defendants to be
remanded in custody if the charge carried a sentence of at least two
years' imprisonment, if they had previously defaulted, had no
permanent residence in Russia or if their identity could not be
ascertained. The amendments of 14 March 2001 also repealed the
provision that permitted defendants to be remanded in custody on the
sole ground of the dangerous nature of the criminal offence they had
allegedly committed. The new CCrP reproduced the amended provisions
(Articles 97 § 1 and 108 § 1) and added that a defendant
should not be remanded in custody if a less severe preventive measure
was available.
THE LAW
I. ALLEGED ILL-TREATMENT OF THE APPLICANT
- The
applicant complained that on several occasions between 21 and 26 June
2000 he had been subjected to psychological and physical pressure by
police officers in order to make him confess to crimes he had not
committed. The Court considers that the applicant's complaint falls
to be examined under 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
Government submitted that the complaint must be rejected for
non-exhaustion of domestic remedies. Neither the applicant nor his
counsel asked the prosecutor's office to open a criminal
investigation into the applicant's allegations. The fact that the
applicant had raised the issue once at a court hearing preceding his
initial conviction on 7 December 2001 could not be regarded as
satisfying the requirements set forth in Article 35 § 1
of the Convention. Lastly, they claimed that the applicant's
allegations had not been supported by any prima facie evidence and
did not meet the standard of proof “beyond reasonable doubt”
established by the Court's case-law.
- The
applicant maintained his complaint.
Admissibility
- The Court does not find it necessary to examine the
objection as to the exhaustion of domestic remedies raised by the
Government, as this complaint is in any event inadmissible for the
following reasons.
- The Court reiterates that allegations of ill-treatment
must be supported by appropriate evidence. To assess this evidence,
the Court adopts the standard of proof “beyond reasonable
doubt” but adds that such proof may follow from the coexistence
of sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact (see Labita v. Italy [GC], no.
26772/95, § 121, ECHR 2000-IV).
- Turning
to the circumstances of the case, the Court observes that in support
of his allegations of ill-treatment, the applicant relied solely on
the certificates issued by a medical emergency response unit and
indicating that he had complained of pains in the lumbar area and
renal colic. The doctor did not administer any treatment or find it
necessary to take the applicant to hospital. Furthermore, at the
relevant time the applicant did not complain about ill-treatment to
the doctor who examined him or to the officer on duty. He brought his
allegations, which were very general and lacked any detail, to the
attention of the court which considered the criminal charges against
him only after more than a year and a half had passed.
41. Accordingly,
the medical documentation submitted does not constitute a sufficient
evidentiary basis to enable the Court to find prima facie that the
applicant was subjected to the alleged ill-treatment in June 2000.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Articles 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF THE RIGHT TO LIBERTY
- The
applicant complained that his pre-trial detention exceeded the
reasonable time requirement. He relied on Article 6 of the
Convention. The Court considers that the complaint falls to be
examined under Article 5 § 3 of the Convention,
which reads as follows:
“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.”
- The
Government contested that argument. They further claimed that the
complaint must be rejected for the applicant's failure to comply with
the six-month rule provided for in Article 35 § 1
of the Convention.
- The
applicant maintained his complaint.
A. Admissibility
- The Court reiterates that, in determining the length
of pre-trial detention under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the
day the accused is taken into custody and ends on the day when the
charge is determined, even if only by a court of first instance (see,
among other authorities, Wemhoff v. Germany, judgment of
27 June 1968, Series A no. 7, p. 23, § 9, and
Labita v. Italy [GC], no. 26772/95, §§ 145
and 147, ECHR 2000-IV). 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”, but is in the
position provided for by Article 5 § 1 (a),
which authorises deprivation of liberty “after conviction by a
competent court” (see Panchenko v. Russia, no. 45100/98,
§§ 91 and 93, 8 February 2005).
- The
Court observes that the applicant's pre-trial detention commenced on
20 June 2000, when he was arrested, and ended on 17 May
2002, when he was convicted by the trial court. The period from
7 December 2001 to 27 March 2002, when the applicant's
initial conviction was quashed on appeal and his case remitted for
new consideration, cannot be taken into account for the purposes of
Article 5 § 3. From 27 March to 17 May 2002, when the
trial court convicted the applicant for the second time, he was again
in pre-trial detention, this time falling within the scope of
Article 5 § 3.
- The
Court considers that, in the present case, both periods of the
applicant's pre-trial detention should be regarded as a whole and the
six-month period should only start to run from the end of the second
period, that is from 17 May 2002 (see, among recent authorities,
Belov v. Russia, no. 22053/02, § 102, 3 July
2008).
- The
Court concludes that, after deducting the periods when the applicant
was detained after conviction under Article 5 § 1 (a)
of the Convention from the total time for which he was deprived of
his liberty, the applicant spent over nineteen months in detention
within the meaning of Article 5 § 3.
- The
Court further finds that the applicant's pre-trial detention ended
within the six months preceding 3 November 2002, that is, the
date of the introduction of the application. Therefore, the
Government's objection that the complaint has been submitted too late
must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty.
It falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty, and set them out in their
decisions dismissing the applications for release (see Labita,
cited above, § 152).
- The
Court accepts that the applicant's detention could have initially
been warranted by a reasonable suspicion of his involvement in the
thefts.
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty (see Labita, cited
above, § 153).
- The
Court observes that in the present case the domestic courts
essentially referred to the gravity of the charges against the
applicant. On one occasion they also mentioned his previous
conviction as a reason for refusal of his release. As for the
applicant's detention pending trial, the court consistently ruled
that the defendants' release “might impede a thorough, complete
and objective examination of the case”.
- As
regards the domestic authorities' reliance on the gravity of the
charges as the decisive element justifying pre-trial detention, the
Court reiterates that the need to continue a deprivation of liberty
cannot be assessed from a purely abstract point of view, taking into
consideration only the gravity of the offence (see Panchenko,
cited above, § 102, and Ilijkov v. Bulgaria, no.
33977/96, § 81, 26 July 2001). In the present case,
however, it appears that the domestic courts assumed that the gravity
of the charges carried such a preponderant weight that they did not
even consider any other pertinent facts. There was no explanation
provided as to how the fact that the applicant had an earlier
conviction was relevant to the matter. Nor did the trial court
elucidate in what way the applicant's release “might impede a
thorough, complete and objective examination of the case”.
- The
Court further notes that the trial court used the same summary
formula to extend pre-trial detention of the three defendants. No
regard had been had to the applicant's individual circumstances.
- Lastly, the Court observes that at no point in the
proceedings did the domestic courts explain in their decisions why
alternatives to the deprivation of liberty would not have ensured
that the trial would follow its proper course.
- The
Court has frequently found a violation of Article 5 § 3 of the
Convention in Russian cases where the domestic courts extended an
applicant's detention relying essentially on the gravity of the
charges and using stereotyped formulae without addressing specific
facts or considering alternative preventive measures (see Belov,
cited above §§ 108 et seq.; Belevitskiy, cited
above, §§ 99 et seq.; Khudobin v. Russia,
no. 59696/00, §§ 103 et seq., ECHR 2006 ...
(extracts); Mamedova v. Russia, no. 7064/05, §§ 72
et seq., 1 June 2006; Dolgova v. Russia, no. 11886/05, §§ 38
et seq., 2 March 2006; Khudoyorov v. Russia, no. 6847/02,
§§ 172 et seq., ECHR 2005 X (extracts); Rokhlina
v. Russia, no. 54071/00, §§ 63 et seq., 7 April
2005; Panchenko v. Russia, cited above, §§ 91
et seq.; and Smirnova, cited above, §§ 56 et
seq.).
- Having
examined the materials submitted to it, the Court does not discern
any fact or argument put forward by the domestic authorities when
ruling on the applicant's pre-trial detention capable of persuading
it to reach a different conclusion in the present case.
- Having
regard to the above, the Court considers that by relying essentially
on the gravity of the charges and by failing to address specific
facts or consider alternative preventive measures the authorities
extended the applicant's detention on grounds which cannot be
regarded as “sufficient” to justify its duration.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that his arrest on 20 June 2000 and
detention from 6 August to 7 December 2001 had been
unlawful; that a search of his flat had not been compliant with
applicable rules of criminal procedure; that the criminal proceedings
against him had been unfair and unreasonably long; that his case had
been considered by a partial tribunal; that he had been found guilty
on the basis of inconclusive and insufficient evidence; that his
lawyer had failed to carry out his defence effectively; that the
trial court had failed to ensure presence of certain witnesses in
court; that he had been sent to serve his sentence in a penitentiary
establishment under more severe conditions than were prescribed by
law. He referred to Article 6 of the Convention.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within the Court's competence ratione materiae,
it finds that the evidence discloses no appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of pecuniary damage
and EUR 20,000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant had claimed compensation for
pecuniary and non-pecuniary damage incurred in the course of his
criminal prosecution. They opined that the applicant's claims should
be dismissed. In any event, they considered them excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court observes that it has found a violation of
the applicant's right to liberty in the present case in that the
length of his detention was not based on sufficient grounds. In these
circumstances, the Court considers that the applicant's suffering and
frustration cannot be compensated for by a mere finding of a
violation. Making its assessment on an equitable basis, it awards the
applicant EUR 3,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 12,000 Russian roubles (RUB) for the costs and
expenses incurred before the Court. He submitted original receipts
for RUB 4,525 in respect of his expenses for translation of
documents and for RUB 976,34 in respect of his postal expenses.
- The
Government claimed that the applicant had not substantiated his
claims in full.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 125 for the
costs and expenses incurred by the applicant in the course of the
proceedings before the Court, plus any tax that may be chargeable to
him.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning an alleged
violation of the applicant's right to a trial within a reasonable
time or release pending trial admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR 125
(one hundred and twenty-five euros) in respect of cost and expenses
in the proceedings before the Court;
(iii) any
tax that may be chargeable to the applicant on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 July 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
