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FIRST
SECTION
CASE OF KISLITSA v. RUSSIA
(Application
no. 29985/05)
JUDGMENT
STRASBOURG
19 June
2012
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 Kislitsa v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 29 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29985/05) 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 Viktor Petrovich
Kislitsa (“the applicant”), on 4 July 2005.
- The applicant was represented by Mr V. Nazarov, a
lawyer practising in Vladivostok. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that his detention on remand had
not been based on relevant and sufficient grounds.
- On
1 April 2009 the applicant’s complaint under Article 5 § 3
of the Convention was communicated to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (former Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1946 and lives in Bolshoy Kamen, a town in the
Primorye Region.
A. Applicant’s arrest and detention pending the
investigation
- On
17 February 2005 criminal proceedings were brought against the
applicant on suspicion of fraud. On the same day the applicant was
arrested.
- On 19 February 2005 the Frunzenskiy District Court of
Vladivostok ordered that the applicant should be detained on remand.
The court held as follows:
“In the court’s view, the non-use of a
custodial measure in respect of an applicant who has committed a
serious crime can entail the applicant’s fleeing from the
pre-trial investigation and the trial, and hampering the
identification and subsequent arrest of those involved in the crime.”
- The
applicant was placed in detention facility IZ-25/1 of Vladivostok.
- The
applicant appealed, claiming, in particular, that the Frunzenskiy
District Court had not taken into consideration his advanced age and
state of health (the applicant was suffering from ischemic heart
disease necessitating regular medical supervision). The applicant
further alleged that the District Court had no territorial
jurisdiction over his case, and, therefore, could not decide on the
issue of his detention. He further insisted that the custodial
measure should be changed to bail.
- Meanwhile,
on 5 March 2005 another set of criminal proceedings was brought
against the applicant on suspicion of fraud. On the same date the two
sets of proceedings were joined under no. 512.
- On
15 March 2005 the Primorye Regional Court upheld the decision of
19 February 2005 on appeal, having taken into consideration the
gravity of the charges against the applicant. The court found no
violation of the rules of territorial jurisdiction. It held that
pursuant to Article 108 § 4 of the Code of
Criminal Procedure a request for application of a custodial measure
could be examined by a court having territorial jurisdiction over the
prosecutor’s office investigating the case.
- On 13 April, 17 June and 12 August 2005 the
Frunzenskiy District Court of Vladivostok extended the applicant’s
detention until 17 June, 17 August and 17 September 2005
respectively. On each occasion the court held as follows:
“As established, the applicant is charged with a
serious crime, and the court considers that, if released, he may
reoffend, threaten witnesses and other participants in the criminal
proceedings, destroy evidence, or otherwise obstruct the
administration of justice.”
- On
11 May, 21 July and 29 August 2005 respectively the Primorye Regional
Court upheld the above-mentioned extension orders on appeal.
B. Applicant’s detention pending trial and
pronouncement of the sentence
- On 20 July 2005 the pre-trial investigation was
completed; on 2 September 2005 the indictment was approved by
the Deputy Prosecutor of the Primorye Region, and on 5 September
2005 the case was submitted to the Shkotovskiy District Court of the
Primorye Region for trial.
- On 15 September 2005 the Shkotovskiy District Court
held a preliminary hearing and extended the applicant’s
detention until 17 November 2005. The court held as follows:
“The court does not see any reason for granting
the request filed by the [applicant’s] defence for the
custodial measure to be changed to an undertaking not to leave the
[applicant’s] place of residence.
In deciding on this issue the court takes into account
the fact that [the applicant] is charged with having committed
serious crimes, which, pursuant to Article 108 of the Code of
Criminal Procedure, serves as one of the grounds for application of a
custodial measure.
Moreover, in the court’s opinion, if at large,
[the applicant] may obstruct the establishment of the truth in the
case. Such a risk stems from the statements of the victim Ye., who
submitted at the preliminary hearing that during the pre-trial
investigation [the applicant’s] [relatives], on his
instructions, had attempted to persuade her to change her statements
to the applicant’s advantage ...”
- During
the preliminary hearing the prosecution challenged the judge’s
impartiality. The judge withdrew from the case, and the case file was
transferred to the Primorye Regional Court.
- The
applicant appealed against the extension of his detention to
17 November 2005. He argued that the District Court had not
considered the possibility of applying to him a more lenient
preventive measure. The applicant further relied on his heart
condition and the fact that the pre-trial investigation had already
been completed.
- On
27 October 2005 the Primorye Regional Court transferred the case to
the Fokino Town Court of the Primorye Region. On the same day the
Regional Court upheld on appeal the decision of 15 September
2005 to extend the applicant’s detention until 17 November
2005.
- On 15 November 2005 the Fokino Town Court extended the
applicant’s detention until the pronouncement of the judgment
on the applicant’s criminal case, provided that period did not
exceed six months, that is, until 8 March 2006. The court held
as follows:
“At the present time [there are] no lawful grounds
for lifting or altering the custodial measure. The applicant is
charged with two crimes, one of which is a serious crime ... There
are grounds to believe that, if at large, the applicant might
obstruct the establishment of the truth in the case as he has been
exerting pressure on the victim, Ye., with the purpose of persuading
[the latter] to alter her statements to [his] advantage – this
circumstance was mentioned by the victim herself.
There is no medical evidence preventing [the applicant]
from being detained in custody. On the contrary, the case file
contains a medical certificate ... dated 8 August 2005 to the
effect that [the applicant’s] state of health allows him to be
detained in a detention facility and participate in investigative
actions”.
- On
27 December 2005 the Primorye Regional Court upheld the above
decision on appeal.
- On
17 February 2006 the Fokino Town Court convicted the applicant of
fraud and attempted fraud. The applicant was given a suspended
sentence of four years’ imprisonment, conditional on three
years’ probation. The applicant was released in the courtroom.
- On
10 April 2006 the Primorye Regional Court upheld the judgment on
appeal.
II. RELEVANT DOMESTIC LAW
- Since
1 July 2002 criminal-law matters have been governed by the Russian
Code of Criminal Procedure (Law no. 174-FZ of 18 December 2001).
A. Preventive measures
- The
“preventive measures” available include an undertaking
not to leave a town or region, personal surety, bail, and detention
(Article 98). When deciding on a preventive measure the competent
authority is required to consider whether there are “sufficient
grounds to believe” that the accused might abscond during the
investigation or trial, reoffend, or obstruct the establishment of
the truth (Article 97). The gravity of the charge, information on the
accused’s character, his or her profession, age, state of
health, family status and other circumstances must also be taken into
account (Article 99). In exceptional circumstances, and when there
exist grounds provided for by Article 97, a preventive measure may be
applied to a suspect on account of circumstances listed in Article 99
(Article 100). If necessary, the suspect or accused may be asked to
give an undertaking to appear (Article 112).
B. Time-limits for detention
1. Two types of remand in custody
- The
Code makes a distinction between two types of remand in custody, the
first being “pending investigation”, that is, while a
competent agency – the police or a prosecutor’s office –
is investigating the case, and the second being “before the
court” (or “pending trial”), at the judicial stage.
2. Time-limits for detention “pending
investigation”
- A
custodial measure may only be ordered by a judicial decision and in
respect of a person who is suspected of, or charged with, a criminal
offence punishable by more than two years’ imprisonment, and
provided that a less restrictive preventive measure cannot be applied
(Article 108 § 1). The time-limit for detention
pending investigation is fixed at two months (Article 109). A
judge may extend that period up to six months (Article 109 § 2).
Further extensions may only be granted by a judge and if the person
is charged with serious or particularly serious criminal offences
(Article 109 § 3). No extension beyond eighteen
months is permissible and the detainee must then be released
immediately (Article 109 § 4).
3. Time-limits for detention “pending trial”
- From
the time the prosecutor sends the case to the trial court, the
defendant’s detention is “before the court” (or
“pending trial”). The period of detention pending trial
is calculated up to the date on which the first-instance judgment is
given. It may not normally exceed six months from the date when the
case file arrives at the court, but if the case concerns serious or
particularly serious criminal offences, the trial court may approve
one or more extensions of no longer than three months each
(Article 255 §§ 2 and 3).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 § 3 of the Convention that
his detention on remand had not been based on relevant and sufficient
grounds. Article 5 § 3 provides 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 submitted that the custodial measure had been applied to
the applicant, and subsequently extended, by competent domestic
courts acting within their competence and in accordance with domestic
law. The relevant detention orders had been based on relevant and
sufficient reasons: the gravity of the charges against the applicant
and a well-founded risk that he might abscond, exert pressure on the
witnesses and the victim, or otherwise obstruct the proceedings. In
particular, the domestic court had evidence to the effect that the
applicant’s relatives had taken measures to persuade the
victim, Ye., to change her statements. The Government relied in this
respect on the record of Ye.’s questioning as a victim on
12 May 2005, the record of her questioning by the court on 15
November 2005, and her objections to an unspecified appeal filed by
the applicant’s lawyer. The Government further submitted that
the lack of detailed reasoning in the appeal decisions of 11 May, 21
July and 29 August 2005 upholding the extension orders could not be
regarded as a ground for finding a violation of Article 5 § 3 of
the Convention, since the custodial measure was commensurate with the
gravity of the charges against the applicant, the reasonable
suspicion against him, and the public interest in preventing crime.
Given the above considerations no alternative, more lenient,
preventive measures could have been applied to the applicant. The
applicant’s argument that the custodial measure was
incompatible with his state of health had been duly examined by the
court and dismissed as unsubstantiated.
- The
applicant agreed that his initial detention might have been justified
by the reasonable suspicion of his having committed serious crimes.
However, after the completion of the pre-trial investigation and
submission of the case for trial the reasons advanced by the domestic
court for his continued detention up to his conviction on 17 February
2006 had no longer been sufficient. Factors that ran counter to the
presumption that he would reoffend were: the applicant’s
personality, his having a permanent place of residence and
employment, his having a family, including two dependent children,
his advanced age, his heart condition, and the absence of any
previous criminal record. The detention orders of 15 September
and 15 November 2005 had been very brief; they had failed to address
the applicant’s situation in any detail and had mostly relied
on the gravity of the charges against him. Further, it did not appear
from the text of these detention orders that the domestic court had
considered the possibility of applying an alternative preventive
measure. The applicant drew the Court’s attention to the fact
that on 17 February 2006 he had been convicted and given a
suspended sentence of four years’ imprisonment, which confirmed
the argument that he had never posed any serious danger to society.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- According
to the Court’s well-established case-law, in determining the
length of detention pending trial 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
Panchenko v. Russia, no. 45100/98, § 91,
8 February 2005; Labita v. Italy [GC], no. 26772/95,
§§ 145 and 147, ECHR 2000-IV; and Wemhoff v. Germany,
27 June 1968, § 9, Series A no. 7).
- In the present case, the applicant’s pre-trial
detention lasted one year, from 17 February 2005, when he was
arrested, until 17 February 2006, when he was convicted by the
trial court. Even if this period does not appear particularly
excessive in itself, the Court reiterates that Article 5 § 3 of
the Convention cannot be seen as authorising pre-trial detention
unconditionally provided that it lasts no longer than a certain
minimum period. Justification for any period of detention, no matter
how short, must be convincingly demonstrated by the authorities (see
Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR
2003-I (extracts)). It is incumbent on the domestic authorities to
establish the existence of concrete facts constituting grounds for
continued detention. Shifting the burden of proof to the detained
person in such matters is tantamount to overturning the rule of
Article 5 of the Convention, a provision which makes detention an
exceptional departure from the right to liberty and one that is only
permissible in exhaustively enumerated and strictly defined cases
(see Rokhlina v. Russia, no. 54071/00, § 67, 7
April 2005, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85,
26 July 2001).
- The
Court is prepared to accept that the applicant’s detention in
the present case was initially warranted by a reasonable suspicion
that he had been involved in the commission of fraud. In this
connection, it reiterates that the persistence of a reasonable
suspicion that the person arrested has committed an offence is a
condition sine qua non for the lawfulness of continued
detention. However, 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. Where such grounds were “relevant”
and “sufficient”, the Court must also ascertain whether
the competent national authorities displayed “special
diligence” in the conduct of the proceedings (see Labita,
cited above, §§ 152-153).
- In the present case, the domestic courts authorised
the extension of the applicant’s detention on remand on five
occasions. When extending the applicant’s detention pending
investigation on 13 April, 17 June and 12 August 2005
they relied on the gravity of the charges against the applicant and
his potential, if released, to reoffend, influence the witnesses,
destroy the evidence, or otherwise obstruct the proper course of the
proceedings. The Court notes that the relevant judicial decisions did
not go any further than listing these grounds, omitting to
substantiate them with reference to any specific facts (see paragraph
12 above). Later on, when the investigation was
already completed and the case file had been submitted to the trial
court, the domestic court in its decisions of 15 September and
15 November 2005 continued to rely on the gravity of the charges
against the applicant and his potential to obstruct the establishment
of the truth. In this latter regard the domestic court relied on the
statement by the victim Ye. to the effect that at the stage of the
pre-trial investigation she had been approached by the applicant’s
relatives and asked to alter her testimony (see paragraphs 15
and 19 above).
- As
regards the courts’ reliance on the gravity of the charges as
the decisive element, the Court has repeatedly held that this reason
cannot by itself serve to justify long periods of detention (see,
among other authorities, Khudoyorov v. Russia, no. 6847/02, §
180, ECHR 2005 X (extracts)). Although the severity of the
sentence faced is a relevant element in the assessment of the risk of
absconding or reoffending, the need to continue the deprivation of
liberty cannot be assessed from a purely abstract point of view,
taking into consideration only the gravity of the offence. Nor can
continuation of the detention be used to anticipate a custodial
sentence (see Letellier v. France, 26 June 1991, § 51,
Series A no. 207; Panchenko, cited above, § 102; Goral
v. Poland, no. 38654/97, § 68, 30 October 2003; and
Ilijkov, cited above, § 81). This is particularly
true in cases, such as the present one, where the characterisation in
law of the facts – and thus the sentence faced by the applicant
– was determined by the prosecution without judicial control of
the issue whether the collected evidence supported a reasonable
suspicion that the applicant had committed the imputed offence (see
Rokhlina, cited above, § 66).
- As
to the presumed risks of the applicant reoffending or destroying the
evidence, as already noted above (see paragraph 35
above), at no point in the proceedings was the existence of such
risks substantiated by reference to any concrete facts. The Court
reiterates in this connection that where circumstances warranting a
person’s detention may have existed but were not mentioned in
the domestic decisions it is not the Court’s task to establish
them and to take the place of the national authorities which ruled on
the applicant’s detention (see Panchenko, cited above,
§§ 99 and 105, and Ilijkov, cited above, § 86).
- As
regards the risk of the applicant perverting the courts of the
proceedings by influencing the witnesses, the Court reiterates in
this connection that whilst at the initial stages of an investigation
the risk that an accused person might pervert the course of justice
may justify keeping him or her in custody, after the evidence has
been collected that ground becomes less strong (see Mamedova v.
Russia, no. 7064/05, § 79, 1 June 2006).
- The
Court accepts that the reasoning applied by the domestic court to
demonstrate the existence of a risk of collusion may have been
sufficient for holding the applicant in custody when the case was
under investigation up to 20 July 2005 (had it been mentioned in
the detention orders issued in the relevant period); however, at a
later stage, when all the evidence had been collected, and in the
absence of any evidence that at the trial stage either the victim Ye.
or any other witness in the case had been subjected to any pressure
by the applicant himself or his relatives, the reasoning advanced by
the domestic courts for the applicant’s continued detention did
not suffice. In order for their reasoning to be sufficient the
domestic courts needed to take into account the stage of the judicial
proceedings, the applicant’s personal situation (his age,
health, residence and employment status, dependent children, the
existence or lack of a criminal record, and so on), his behaviour
before and after the arrest, and any other specific indications, such
as, for example, the nature of the crime and the severity of the
potential sentence, in order to justify, or prove groundless, the
fear that he might abuse his regained liberty by, inter alia,
manipulating witnesses.
- The
Court further emphasises that when deciding whether a person should
be released or detained the authorities have an obligation under
Article 5 § 3 to consider alternative measures of ensuring
his or her appearance at the trial (see Sulaoja v. Estonia,
no. 55939/00, § 64, 15 February 2005, and Jabłoński
v. Poland, no. 33492/96, § 83, 21 December 2000).
In the present case, it was not until the stage of the trial that the
domestic courts mentioned in their decisions the presumed absence of
any grounds for altering the custodial measure (see paragraphs 15
and 19 above). Even then, the relevant decisions
omitted to set out with sufficient clarity why such alternatives
would not have ensured that the trial followed its proper course.
- In
view of the materials in its possession, the Court is not convinced
that the domestic court’s decisions were based on an analysis
of all the pertinent facts and had proper regard to the applicant’s
individual circumstances.
- Overall,
the Court considers that by failing to refer to specific relevant
matters and to properly consider alternative “preventive
measures”, as well as by relying essentially on the gravity of
the charges, the authorities extended the applicant’s detention
on grounds which cannot be regarded as “sufficient”. They
thus failed to justify the applicant’s continued deprivation of
liberty. In such circumstances it is not necessary to examine whether
the case was complex or whether the proceedings were conducted with
“special diligence”.
- In
the light of the foregoing considerations, the Court finds that there
has been a violation of Article 5 § 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Articles 3 and 5 of the Convention
that his state of health was incompatible with a custodial measure,
that there had been a lack of adequate medical assistance in the
remand prison, and of the alleged unlawfulness of his detention.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is no appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols in this connection. It follows
that this part of the application must be rejected as manifestly
ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of
the Convention.
III. 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 15,000 euros (EUR) in respect of non-pecuniary
damage.
- The Government considered the above claim to be
excessive. They submitted that if the Court were to find a violation,
the finding of such a violation would constitute in itself sufficient
just satisfaction.
- The
Court observes that it has found a violation of Article 5 § 3 on
account of the applicant’s continued detention on remand in the
absence of “sufficient” reasons. The applicant must have
suffered anguish and distress on account of that infringement of his
right to liberty. Having regard to these considerations, and judging
on an equitable basis, the Court finds it reasonable to award the
applicant EUR 1,000 under this head, plus any tax that may be
chargeable on this amount.
B. Costs and expenses
- The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 under Article 5 § 3
of the Convention 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 of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 19 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
