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126. In its decision of 22 February 2005 on the admissibility
of the present application, the Court declared admissible the
applicant's complaints concerning the lawfulness of his detention
on remand after 4 May 2001. The most recent period of detention
which the applicant complained about ended on 4 December 2002.
Accordingly, the Court will examine the lawfulness of the
applicant's detention on remand from 4 May 2001 to 4 December
2002.
(c) Detention on remand from 4 May to 8 August 2001
127. The Court observes that on 28 April 2001 the Vladimir
Regional Court, on a request by a prosecutor, extended the
applicant's detention until 4 September 2001. On 8 August 2001 the
Supreme Court quashed the decision because of substantial
violations of the rules of criminal procedure and ordered a re-
examination of the issue of detention. On 15 August 2002 the
Regional Court reconsidered the request and ordered the
applicant's detention from 4 May to 4 September 2001.
128. The issue to be determined is whether the detention in
that period was "lawful", including whether it complied with "a
procedure prescribed by law". The Court reiterates that a period
of detention will in principle be lawful if carried out pursuant
to a court order. A subsequent finding that the court erred under
domestic law in making the order will not necessarily
retrospectively affect the validity of the intervening period of
detention. For this reason, the Convention organs have
consistently refused to uphold applications from persons convicted
of criminal offences who complain that their convictions or
sentences were found by the appellate courts to have been based on
errors of fact or law (see Benham v. the United Kingdom, judgment
of 10 June 1996, Reports 1996-III, з 42).
129. In the present case the Court will consider whether the
detention order of 28 April 2001 constituted a lawful basis for
the applicant's detention until it was quashed on 8 August 2001.
The mere fact that the order was set aside on appeal did not in
itself affect the lawfulness of the detention in the preceding
period. For the assessment of compliance with Article 5 з 1 of the
Convention the basic distinction has to be made between ex facie
invalid detention orders - for example, given by a court in excess
of jurisdiction or where the interested party did not have proper
notice of the hearing - and detention orders which are prima facie
valid and effective unless and until they have been overturned by
a higher court (Benham, cited above, зз 43 and 46; Lloyd and
Others v. the United Kingdom, Nos. 29798/96 et seq., зз 108, 113
and 116, cf. also з 83, 1 March 2005).
130. It has not been alleged that on 28 April 2001 the Regional
Court acted in excess of its jurisdiction. Indeed, as a matter of
domestic law, it had the authority to examine the prosecutor's
application for an extension of the applicant's detention and to
grant a further extension, not exceeding six months, until such
time as the applicant had finished reading the file and the case
had been sent for trial (see paragraph 84 above).
131. Furthermore, the Court finds that applicant's detention on
the basis of the order of 28 April 2001 cannot be said to have
been arbitrary as the court gave certain grounds justifying the
continued detention on remand. The sufficiency and relevance of
these grounds will be discussed below from the standpoint of
Article 5 з 3 of the Convention.
132. It has not therefore been established that, in issuing the
detention order of 28 April 2001, the District Court acted in bad
faith, or that it neglected to attempt to apply the relevant
legislation correctly. The fact that certain flaws in the
procedure were found on appeal does not in itself mean that the
detention was unlawful (see Gaidjurgis v. Lithuania (dec.), No.
49098/99, 16 January 2001; Benham, cited above, з 47; cf. also
Bozano v. France, judgment of 18 December 1986, Series A No. 111,
з 59).
133. In these circumstances, the Court finds that there was no
violation of Article 5 з 1 of the Convention on account of the
applicant's detention on remand from 4 May to 8 August 2001.
(d) Detention on remand from 8 August to 4 September 2001
134. The Court notes that on 8 August 2001 the Supreme Court,
having quashed the Regional Court's decision, held that the
preventive measure imposed on the applicant "should remain
unchanged". The Government maintained that the Supreme Court's
decision constituted a "lawful" basis for the applicant's
detention after 8 August 2001.
135. The Court notes that in several cases against Lithuania it
found that the trial court's decision to maintain a preventive
measure "unchanged" had not, as such, breached Article 5 з 1 in so
far as the trial court "had acted within its jurisdiction... [and]
had power to make an appropriate order" ({Jecius}, cited above, з
69; {Stasaitis} v. Lithuania (dec.), No. 47679/99, 28 November
2000; {Karalevicius} v. Lithuania (dec.), No. 53254/99, 6 June
2002). In the {Stasaitis} judgment it noted, however, that "the
absence of any grounds given by the judicial authorities in their
decisions authorising detention for a prolonged period of time may
be incompatible with the principle of the protection from
arbitrariness enshrined in Article 5 з 1" ({Stasaitis} v.
Lithuania, No. 47679/99, з 67, 21 March 2002).
136. The Court observes that the Supreme Court did not give any
reasons for its decision to remand the applicant in custody. Nor
did it set a time-limit either for the continued detention or for
a re-examination of the issue of detention by the Regional Court.
As it happened, the Regional Court did not give a new decision
until more than one year later, on 15 August 2002, and the Supreme
Court upheld that decision in the final instance in January 2003.
Leaving aside the concurrent developments in the applicant's case
(discussed below), it transpires that for more than a year the
applicant remained in a state of uncertainty as to the grounds for
his detention after 8 August 2001. The Supreme Court's failure to
give reasons for its decision was made all the more regrettable by
the fact that the applicant had by then spent two years and six
months in custody without a valid judicial decision setting out
the grounds for his detention in detail.
137. In these circumstances, the Court considers that the
Supreme Court's decision of 8 August 2001 did not comply with the
requirements of clarity, foreseeability and protection from
arbitrariness, which together constitute the essential elements of
the "lawfulness" of detention within the meaning of Article 5 з 1.
138. It remains to be determined whether the Regional Court's
decision of 15 August 2002, as upheld on appeal on 23 January
2003, could have constituted a "lawful" basis for the applicant's
detention from 8 August to 4 September 2001.
139. As noted above, the decision of 15 August 2002 was issued
more than a year after the detention period authorised therein had
lapsed. The Government did not indicate any domestic legal
provision that permitted a decision to be taken authorising a
period of detention retrospectively. On the contrary, the general
habeas corpus provisions required the director of the remand
centre to release any detainee once his statutory detention period
had expired without any order being made for its extension
(Article 11 of the old CCrP).
140. Such has been also the view of the Russian Constitutional
Court, which found that Russian law did not contain "any
provisions permitting the court to take a decision extending the
defendant's detention on remand [some time] after once the
previously authorised time-limit has expired, in which event the
person is detained for a period without a judicial decision" (see
paragraph 56 above).
141. It follows that the applicant's detention, in so far as it
had been authorised by a judicial decision issued in respect of
the preceding period, was not "lawful" under domestic law.
142. Furthermore, the Court considers that any ex post facto
authorisation of detention on remand is incompatible with the
"right to security of person" as it is necessarily tainted with
arbitrariness. Permitting a prisoner to languish in detention on
remand without a judicial decision based on concrete grounds and
without setting a specific time-limit would be tantamount to
overriding Article 5, 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.
143. The Court therefore considers that there was a violation
of Article 5 з 1 of the Convention on account of the applicant's
detention on remand from 8 August to 4 September 2001.
(e) Detention on remand from 4 September 2001 to 9 January 2002
144. The Court further notes, and it has not been disputed by
the parties, that between the date of expiry of the authorised
detention period on 4 September 2001 and the Vladimir Regional
Court's subsequent decision of 9 January 2002 on the application
for release, there was no decision - either by a prosecutor or by
a judge - authorising the applicant's detention. It is also common
ground that in that period the applicant was held in detention on
the basis of the fact that the criminal case against him had been
referred to the court competent to deal with the case.
145. The Government maintained that the detention was lawful
because it complied with the substantive and procedural provisions
of the rules of criminal procedure. The Regional Court was not
required to extend the applicant's detention or otherwise validate
it.
146. The Court has already examined and found a violation of
Article 5 з 1 in a number of cases concerning the practice of
holding defendants in custody solely on the basis of the fact that
a bill of indictment has been lodged with the court competent to
try the case (see Baranowski, cited above, зз 53 - 58; {Jecius},
cited above, зз 60 - 64). It held that the practice of keeping
defendants in detention without a specific legal basis or clear
rules governing their situation - with the result that they may be
deprived of their liberty for an unlimited period without judicial
authorisation - is incompatible with the principles of legal
certainty and protection from arbitrariness, which are common
threads throughout the Convention and the rule of law (ibid.).
147. The Court sees no reason to reach a different conclusion
in the present case. Admittedly, unlike the Polish law at the
relevant time which set no time-limit for the detention after a
bill of indictment had been lodged with the court (see Baranowski,
зз 31 - 35, in particular, the last paragraph of the Polish
Supreme Court's resolution of 6 February 1997), the Russian rules
of criminal procedure set a time-limit. Within fourteen days of
receipt of the file the court has to determine whether the case is
ready for trial and, if so, fix the hearing date and order the
defendant's release or continued detention (see paragraphs 91 and
94 above). Thus, detention without an order was limited to
fourteen days maximum, at least in theory.
148. The Court, however, is not persuaded that the existence of
the time-limit in Russian law does in fact distinguish the present
case from the Baranowski and {Jecius} cases.
149. Firstly, for the detention to meet the standard of
"lawfulness", it must have a basis in domestic law (see paragraph
124 above). The Government, however, did not point to any legal
provision which permitted an accused to continue to be held once
the authorised detention period had expired. The Court notes that
under the Russian Constitution and rules of criminal procedure the
power to order or prolong detention on remand was vested in
prosecutors and courts (see paragraph 78 above). No exceptions to
that rule were permitted or provided for, no matter how short the
duration of the detention. As noted above, during the relevant
period there was neither a prosecutor's order nor a judicial
decision authorising the applicant's detention. It follows that
the applicant was in a legal vacuum that was not covered by any
domestic legal provision.
150. Furthermore, as in the present case, in which the Vladimir
Regional Court took more than four months to decide on a
preventive measure, the fourteen-day time-limit was not complied
with in practice. The Government did not offer any explanation for
the delay.
151. It follows that during the period from 4 September 2001 to
9 January 2002 there was no valid domestic decision or other
"lawful" basis for the applicant's detention on remand. By itself,
the fact that the case had been sent to the court for trial did
not constitute a "lawful" basis, within the meaning of Article 5 з
1 of the Convention, for the applicant's continued detention.
There has thus been a violation of Article 5 з 1 of the Convention
in respect of that period.
(f) Detention on remand from 9 January to 13 March 2002
152. The Court notes that on 9 January 2002 the Vladimir
Regional Court fixed the date for the trial to commence and
rejected the applicant's application for release. It remanded the
applicant and his co-defendants in custody because of the gravity
of the charges against them.
The trial court acted within its powers in making that decision
and there is nothing to suggest that it was invalid or unlawful
under domestic law. The question whether the reasons for the
decision were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 з 3. In the
{Stasaitis} decision (cited above) the Court accepted that a
similar decision by a trial court was compatible with the
requirements of Article 5 з 1 of the Convention. There is nothing
in the present case to warrant a different conclusion.
153. The Court finds that there has been no violation of
Article 5 з 1 of the Convention on account of the applicant's
detention on remand from 9 January to 13 March 2002.
(g) Detention on remand from 13 March to 12 September 2002
154. The Court notes that on 13 March 2002 the Vladimir
Regional Court identified certain procedural defects and returned
the case to the prosecution for them to be remedied. It extended
the applicant's detention for an indefinite period. The applicant
appealed, arguing, in particular, that the investigators had
already used up all the time permitted for detention "pending the
investigation" and no further extensions were permissible. On 12
September 2002 the Supreme Court quashed the Regional Court's
decision on procedural grounds, without examining the applicant's
arguments pertaining to the lawfulness of his detention.
155. The Court observes that the rules on detention at the time
permitted up to eighteen months' detention "pending the
investigation", plus up to six months when authorised by a
judicial decision if the defendants needed more time to study the
file, and an additional month when authorised by a supervising
prosecutor if the case was returned for an additional
investigation (see paragraphs 82 - 85 above).
156. Turning to the present case, the Court notes that the
eighteen months' detention "pending the investigation" expired on
4 April 2001 <*>. The prosecutor then authorised an additional
month of custody until 4 May 2001 and thereafter the trial court
exercised its right to grant a further four-month extension until
4 September 2001. It follows that the authorities exhausted the
legal possibilities for extending the applicant's detention
"pending the investigation". In these circumstances, no further
extension appears to have been possible under domestic law.
--------------------------------
<*> The applicant was taken into custody on 22 January 1999 and
by 4 April 2001 had already spent 2 years, 2 months and 13 days in
detention. However, the detention "pending the investigation" did
not include the period from 21 June 2000 to 28 February 2001 when
the case was technically "before the [trial] court".
157. The Government did not indicate any legal provision that
permitted a defendant to be held in custody after the expiry of
the above time-limits. The Court notes that the Regional Court's
decision of 13 March 2002 was extremely laconic with regard to the
issue of detention and made no reference to any legal provision
which would have permitted the applicant's further detention. It
follows that the decision did not offer sufficient protection from
arbitrariness and failed to satisfy the standard of "lawfulness"
required under Article 5 з 1 of the Convention.
158. The Court therefore finds that there has been a violation
of Article 5 з 1 of the Convention on account of the applicant's
detention on remand from 13 March to 12 September 2002.
(h) Detention on remand from 12 September 2002 to 18 November
2002
159. The Court notes that on 12 September 2002 the Supreme
Court instructed the Regional Court to proceed with the trial and
confirmed that the defendants should remain in custody. It follows
that from that date onwards, the applicant's detention was "during
the trial".
It is relevant here to recall that on 13 March 2002, the final
day of the applicant's previous period in detention "during the
trial", the applicant had already been in that type of detention
for six months and several days (starting from the date the case
was referred for trial in September 2001). At that time this
situation was not unlawful under domestic law because the six-
month time-limit for detention "during the trial" in the old CCrP
did not apply to defendants who, like the applicant, were charged
with particularly serious crimes (see paragraph 87 above).
However, by the time of the Supreme Court's decision of 12
September 2002 ordering the applicant's continued detention
"during the trial", the new CCrP was already effective. After the
expiry of the initial six months it required the trial court to
issue a separate decision extending the detention "during the
trial" (see paragraph 88 above).
160. The Government claimed that the applicant's detention was
covered by the Supreme Court's decision up to 7 October 2002, on
which date the case-file reached the Regional Court, and
thereafter by the fact that the first hearing had been fixed for
18 November 2002. Accepting, for the sake of argument, the
Government's explanation, the Court considers that in such
eventuality the applicant's detention after 7 October 2002 would
have been incompatible with Article 5 з 1 of the Convention
because the Supreme Court's decision of 12 September 2002 would
have ceased to apply and no other order for detention had been
issued. In this connection the Court refers to its findings in
paragraphs 146 - 151 above in respect of a similar period of
detention and notes that the new CCrP regrettably inherited from
the old CCrP the lack of clear rules governing the detainee's
situation after the case had been sent for trial.
161. In any event, the Government's explanation does not
satisfy the Court. It observes that on 18 November 2002 the
Regional Court extended the applicant's detention "for a further
three months, until 3 December 2002". This formula implies, by
converse implication, that the trial court did not consider either
the Supreme Court's decision of 12 September 2002 or the fact that
it had received the file on 7 October 2002 as valid grounds for
the applicant's detention and that it felt itself obliged to
provide a different basis for his detention during the preceding
two months and three weeks.
162. In the Court's view, the Regional Court's decision of 18
November 2002 amounted to an acknowledgement of the fact that the
applicant's detention in the preceding period had lacked a
sufficiently clear legal basis. The applicant was not therefore
afforded sufficient protection from arbitrariness to satisfy the
requirements of Article 5 з 1 of the Convention. The Regional
Court's decision of 18 November 2002 could not remedy the lack of
a "lawful" basis in the preceding period as it is incompatible
with both domestic law and the Convention guarantees to issue a
detention order with retrospective effect (see paragraphs 139 -
142 above). In any event, the decision of 18 November 2002 was
subsequently quashed by the Supreme Court because of the Regional
Court's failure to conform to the procedural requirements (see
below).
163. The Court finds, accordingly, that there has been a
violation of Article 5 з 1 of the Convention on account of the
applicant's detention from 12 September to 18 November 2002.
(i) Detention on remand from 18 November to 4 December 2002
164. The Court notes that on 18 November 2002 the Vladimir
Regional Court, sitting in a single-judge formation, authorised
the applicant's detention on remand until 3 December 2002. The
applicant alleged, in particular, that his detention from midnight
on 3 December to 4 December 2002, when the Regional Court granted
a further extension, was been covered by any detention order and
had therefore been unlawful.
165. The Court reiterates that, for detention to be "lawful"
within the meaning of Article 5 з 1, it has to conform to both the
substantive and procedural rules of the domestic law (see
paragraph 124 above).
The Court notes that the Regional Court's detention order of 18
November 2002 was quashed by the Supreme Court on 21 May 2005
because it had been given by an incomplete formation, in breach of
the domestic rules of criminal procedure. This indicates that the
court, sitting in a single-judge formation, did not have
jurisdiction to order the applicant's continued detention and that
the order of 18 November 2002 was null and void ab initio (see
paragraph 129 above).
It follows that the decision of 18 November 2002 could not have
formed a "lawful" basis for the applicant's detention on remand
after that date.
166. In the absence of any other decision that could have
served as a "lawful" basis for the applicant's detention in the
period to 4 December 2002, the Court finds that there has been a
violation of Article 5 з 1 of the Convention on account of the
applicant's detention on remand from 18 November to 4 December
2002.
3. Summary of the findings
167. The Court has found no violation of Article 5 з 1 of the
Convention on account of the applicant's detention on remand from
4 May to 8 August 2001 and from 9 January to 13 March 2002.
168. The Court has found a violation of Article 5 з 1 of the
Convention on account of the applicant's detention on remand from
8 August 2001 to 9 January 2002 and from 13 March 2002 to 4
December 2002.
III. Alleged violation of Article 5 з 3 of the Convention
169. The applicant complained under Article 5 з 3 of the
Convention that his detention on remand had been excessively long.
Article 5 з 3 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..."
1. The parties' submissions
170. The Government submitted that it had been necessary for
the applicant to remain in custody because he was a foreign
national charged with a particularly serious criminal offence. He
had no permanent residence in the Russian Federation and thus
would have been liable to abscond if released.
171. The applicant responded that the decisions extending his
detention were identically worded and more often than not did not
state any concrete reason as to why it was necessary to hold him
in custody.
2. The Court's assessment
(a) Principles established in the Court's case-law
172. 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. It is essentially on the basis of the
reasons given in these decisions and of the true facts mentioned
by the applicant in his appeals that the Court is called upon to
decide whether or not there has been a violation of Article 5 з 3
of the Convention (see Labita, cited above, з 152).
173. The arguments for and against release must not be "general
and abstract" (see Smirnova v. Russia, Nos. 46133/99 and 48183/99,
з 63, ECHR 2003-IX). Where the law provides for a presumption in
respect of factors relevant to the grounds for continued
detention, the existence of the concrete facts outweighing the
rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, No. 33977/96, з 84 in fine,
26 July 2001).
174. 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. 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 (Labita,
cited above, з 153).
(b) Application of the principles to the present case
175. The applicant's detention on remand lasted from 22 January
1999, when he was taken in custody, to 28 May 2004, when he was
released. The total duration of the detention thus amounted to
five years, four months and six days. However, the Court does not
lose sight of the fact that in the periods from 8 August 2001 to 9
January 2002 and from 13 March 2002 to 4 December 2002 the
applicant's detention was not in accordance with Article 5 з 1 of
the Convention.
176. The Court accepts that the applicant's detention may
initially have been warranted by a reasonable suspicion that he
was involved in drug-trafficking. As noted in the District Court's
decision of 28 December 1999, at that stage of the proceedings the
need to ensure the proper conduct of the investigation and to
prevent the applicant from absconding - having regard to his
foreign nationality and permanent residence outside Russia - could
justify keeping him in custody.
177. However, with the passage of time those grounds inevitably
became less and less relevant. Accordingly, the domestic
authorities were under an obligation to analyse the applicant's
personal situation in greater detail and to give specific reasons
for holding him in custody.
The Government submitted that the courts had gauged the
applicant's potential to abscond by reference to his foreign
nationality and lack of permanent residence in Russia. However,
contrary to the Government's submission, after the case had been
sent for trial for the first time in June 2000, these particular
reasons were not cited in any valid extension order.
178. The Court further notes that at no point in the
proceedings did the domestic authorities consider whether the
length of the applicant's detention had exceeded a "reasonable
time". Such an analysis should have been particularly prominent in
the domestic decisions after the applicant had spent more than two
years in custody and all the detention periods permitted by the
domestic law had expired (see paragraphs 156 et seq. above).
179. After the trial started, the Regional Court extended the
applicant's detention seven times. The first three extensions were
subsequently quashed by the Supreme Court on the ground that they
had been given by the incomplete bench. All the decisions cited
the gravity of the charges as the main ground for the continued
detention. The two most recent decisions additionally mentioned
"sufficient reasons to believe that the defendants would abscond".
Moreover, five decisions - dated between 18 November 2002 and
28 August 2003 - referred to the need "to secure... the
enforcement of the conviction". The Court notes that this ground
for detention is only provided for in Article 5 з 1 (a) which
governs detention of a person "after conviction by a competent
court". However, in the present case the applicant had not been
convicted and the domestic courts' reliance on that ground
amounted to a prejudgment of the merits of the case, leaving a
conviction as the only possible outcome of the trial.
180. The Court accepts that the severity of the sentence faced
is a relevant element in the assessment of the risk of absconding.
In view of the seriousness of the accusation against the applicant
the authorities could reasonably consider that such an initial
risk was established. However, the Court has repeatedly held that
the gravity of the charges cannot by itself serve to justify long
periods of detention on remand (see Panchenko v. Russia, No.
45100/98, з 102, 8 February 2005; Goral v. Poland, No. 38654/97, з
68, 30 October 2003; Ilijkov v. Bulgaria, No. 33977/96, з 81, 26
July 2001).
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 review of the issue whether the
evidence that had been obtained supported a reasonable suspicion
that the applicant had committed the alleged offence. Indeed, the
Court observes that the applicant was only released from custody
after the prosecution had applied to his acts a different
characterisation in law. Further, less than a month after his
release the prosecution decided to drop most of the charges and
the trial court acquitted the applicant of those that remained.
181. As regards the existence of a risk of absconding, the
Court reiterates that such a danger cannot be gauged solely on the
basis of the severity of the sentence faced. It must be assessed
with reference to a number of other relevant factors which may
either confirm the existence of a danger of absconding or make it
appear so slight that it cannot justify detention pending trial
(see Panchenko, cited above, з 106; Letellier v. France, judgment
of 26 June 1991, Series A No. 207, з 43). In the present case the
decisions of the domestic authorities gave no reasons why,
notwithstanding the arguments put forward by the applicant in
support of his applications for release, they considered the risk
of his absconding to be decisive. The domestic decisions merely
hinted at the existence of "sufficient grounds to believe that the
defendants would abscond", without saying what those grounds
actually were. The Court finds that the existence of such a risk
was not established.
182. The Court finally observes that during the entire period
of the applicant's detention on remand, the authorities did not
consider the possibility of ensuring his presence at trial by the
use of other "preventive measures" - such as conditional bail or
an undertaking not to leave the town - which are expressly
provided for by Russian law to secure the proper conduct of
criminal proceedings (see paragraph 77 above).
183. In that context, the Court would emphasise that under
Article 5 з 3 the authorities are obliged to consider alternative
measures of ensuring his appearance at trial when deciding whether
a person should be released or detained. Indeed, the provision
proclaims not only the right to "trial within a reasonable time or
to release pending trial" but also lays down that "release may be
conditioned by guarantees to appear for trial" (see Sulaoja v.
Estonia, No. 55939/00, з 64 in fine, 15 February 2005; {Jablonski}
v. Poland, No. 33492/96, з 83, 21 December 2000).
184. Given that the applicant's trial would not be able to
begin for a considerable time owing to events wholly unrelated to
his conduct (see paragraph 188 below), the authorities should
either have considered having recourse to such alternative
measures or at minimum explained in their decisions why such
alternatives would not have ensured that the trial would follow
its proper course. This failure is made all the more inexplicable
by the fact that the new CCrP expressly requires the domestic
courts to consider less restrictive "preventive measures" as an
alternative to custody (see paragraph 80 in fine above).
185. In sum, the Court finds that the domestic courts'
decisions were not based on an analysis of all the pertinent
facts. They took no notice of the arguments in favour of the
applicant's release pending trial, such as his deteriorating
health and family connections in the region. It is of particular
concern to the Court that the Russian authorities persistently
used a stereotyped summary formula to justify extensions of
detention: the Regional Court reproduced the same one-paragraph
text verbatim in five decisions between 18 November 2002 and 28
August 2003 and a slightly modified version in two later
decisions.
186. Moreover, in the present case the Court observes an
established practice of issuing collective extension orders, that
is judicial decisions extending the period of detention of several
co-defendants at the same time, thereby ignoring the personal
circumstances of individual detainees. In the Court's view, this
practice is incompatible, in itself, with the guarantees enshrined
in Article 5 з 3 of the Convention in so far as it permitted the
continued detention of a group of persons (including the
applicant), without a case-by-case assessment of the grounds or
compliance with the "reasonable-time" requirement in respect of
each individual member of the group.
187. Having regard to the above, the Court considers that by
failing to address concrete facts or consider alternative
"preventive measures" and by relying essentially on the gravity of
the charges, the authorities prolonged the applicant's detention
on grounds which cannot be regarded as "relevant and sufficient".
188. That finding would, as a rule, absolve the Court from
having to determine whether the national authorities displayed
"special diligence" in the conduct of the proceedings. However, in
the present case the Court cannot but note that delays in the
proceedings were more than once occasioned by failings on the part
of the authorities. Thus, the trial court was unable to begin the
examination of the case in earnest from June 2000 to April 2001
because the prosecution persistently failed to arrange for a
translation of the bill of indictment into Tajik, the language
spoken by seven of the defendants. After that defect had been
rectified, the domestic courts were unable to agree whether other
procedural shortcomings had irreparably impaired the defence
rights and this led to a further delay from March to September
2002. Furthermore, on each occasion the file was returned to the
Regional Court, it took a considerable amount of time - ranging
from one and a half to four months - merely to fix the hearing
date. Having regard to these circumstances, the Court considers
that the domestic authorities failed to display "special
diligence" in the conduct of the proceedings.
189. There has therefore been a violation of Article 5 з 3 of
the Convention.
III. Alleged violations of Article 5 з 4 of the Convention
190. The applicant complained under Article 5 з 4 of the
Convention that he had not been permitted to take part in the
appeal hearings and that the courts had not pronounced "speedily"
on the lawfulness of his detention. Article 5 з 4 reads as
follows:
"Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of
his detention shall be decided speedily by a court and his release
ordered if the detention is not lawful."
1. The parties' submissions
191. As regards the proceedings on his appeal against the
Regional Court's decision 28 April 2001, the applicant contended
that it had taken the Supreme Court seventy-two days to fix the
first appeal hearing, which was by no means a "speedy" review.
After the hearing of 9 July 2001 had had to be adjourned, the next
hearing was not fixed until almost a month later, which could not
be considered sufficiently "speedy" either. The applicant claimed
that the Supreme Court's persistent refusals to permit his
attendance at the appeal hearing had been in breach of the
decisions of the Russian Constitutional Court on his complaints
(see paragraphs 56 and 57 above).
192. As regards the "speediness" of the review, the Government
submitted that there had been "objective reasons" for the length
of the proceedings, such as the failure of the applicant's counsel
to attend hearings, his repeated requests for adjournments and his
appeals to the higher court. As to the applicant's presence before
the appeal court, the refusal to permit the applicant's attendance
had been consistent with Article 335 of the CCrP, which restricted
the right to appear before the appeal court to persons who had
been convicted or acquitted.
2. The Court's assessment
(a) Principles established in the Court's case-law
193. The Court reiterates that Article 5 з 4, in guaranteeing
to persons arrested or detained a right to take proceedings to
challenge the lawfulness of their detention, also proclaims their
right, following the institution of such proceedings, to a speedy
judicial decision concerning the lawfulness of detention and
ordering its termination if it proves unlawful. Although it does
not compel the Contracting States to set up a second level of
jurisdiction for the examination of the lawfulness of detention, a
State which institutes such a system must in principle accord to
the detainees the same guarantees on appeal as at first instance
(see Navarra v. France, judgment of 23 November 1993, Series A No.
273-B, з 28; Toth v. Austria, judgment of 12 December 1991, Series
A No. 224, з 84). The requirement that a decision be given
"speedily" is undeniably one such guarantee; while one year per
instance may be a rough rule of thumb in Article 6 з 1 cases,
Article 5 з 4, concerning issues of liberty, requires particular
expedition (see Hutchison Reid v. the United Kingdom, No.
50272/99, з 79, ECHR 2003-IV). In that context, the Court also
observes that there is a special need for a swift decision
determining the lawfulness of detention in cases where a trial is
pending because the defendant should benefit fully from the
principle of the presumption of innocence (see {Ilowiecki} v.
Poland, No. 27504/95, з 76, 4 October 2001).
(b) Appeal against the judicial decision of 28 April 2001
194. The Court notes that on 4 and 17 May 2001 the applicant
appealed against the Regional Court's decision of 28 April 2001
extending his detention on remand. After that decision had been
quashed on appeal and the matter had been reconsidered by the
Regional Court the Supreme Court gave a final decision on 23
January 2003. In these proceedings the Supreme Court twice refused
the applicant leave to appear before it; the applicant's lawyer
was, however, present.
195. The Court notes that the proceedings that followed the
applicant's appeal against the Regional Court's decision of 28
April 2001 lasted more than one year and eight months until the
final decision of the Supreme Court. Even though the Government
offered an explanation for some of the delays, they did not
explain, for example, why it had taken the Supreme Court more than
five months to examine the appeal against the Regional Court's
second decision, whereas, under domestic law, any appeal should
have been examined within two months maximum (see paragraph 96
above). The Government did not indicate the reasons for the
Supreme Court's failure to abide by that time-limit.
In any event, the Court considers that no exceptional
circumstances could justify such inordinate delays in proceedings
concerning the lawfulness of detention.
196. The Court finds therefore that there has been a violation
of Article 5 з 4 of the Convention on account of the length of the
proceedings on the applicant's appeal against the Regional Court's
decision of 28 April 2001. In the light of this finding, the Court
does need not to determine whether the refusal of leave to appear
also entailed a violation of Article 5 з 4.
(c) Application for release of 4 September 2001
197. The Court notes that, once the case was sent for trial on
4 September 2001, the applicant immediately lodged an application
for release, which the Regional Court examined and rejected on 9
January 2002.
198. The Court observes that under the domestic law in force at
the time the trial court was required to decide an application for
release within fourteen days after receipt of the case file
(Articles 223 and 223.1 of the old CCrP, see paragraphs 91 and 94
above). The Government did not explain why that provision had not
been complied with in the applicant's case.
The Court considers that a period of 125 days cannot be
considered compatible with the "speediness" requirement of Article
5 з 4, especially as the legal basis for the applicant's detention
had shifted.
199. Accordingly, the Court finds that there has been a
violation of Article 5 з 4 of the Convention on account of the
failure to examine the applicant's application for release of 4
September 2001 "speedily".
(d) Appeals against the judicial decision of 9 January 2002
200. The Court notes that on 9 January 2002 the trial court
extended the applicant's detention pending trial. On 5 February
2002 it adjourned the hearing because of the absence of three
defendants. On 11 and 15 February 2002 the applicant lodged
appeals against these decisions and the notice of appeal of 15
February repeated the points that had been raised in the notice of
appeal dated 11 February.
201. The applicant contended, and this was not contested by the
respondent Government, that the registry of the Regional Court had
omitted to send his notices of appeal to the Supreme Court.
202. The Court finds therefore a violation of Article 5 з 4 of
the Convention on account of the manifest failure of the domestic
authorities to examine the applicant's appeals against the
extension order of 9 January 2002.
(e) Appeal against the judicial decision of 13 March 2002
203. The Court notes that on 29 April 2002 the applicant
appealed against the trial court's decision of 13 March 2002 that
had resulted in his detention being extended. The appeal was not
examined by the Supreme Court until 12 September 2002. The Supreme
Court refused the applicant's request for leave to appear in
person.
204. For the same reasons as above, the Court considers that a
period of 134 days was incompatible with the "speediness"
requirement of Article 5 з 4 of the Convention and that there has
been a violation of that provision.
(f) Appeals against the decisions of 18 November and 4 December
2002
205. The Court notes that on 22 and 26 November and 5 December
2002 the applicant appealed against the decisions of 18 November
and 4 December 2002 extending his pre-trial detention. He
initially alleged that the Supreme Court had chosen not to examine
his appeals. On 21 March 2005, after the case had been declared
admissible, the Supreme Court quashed the decisions of 18 November
and 4 December 2002 on procedural grounds. However, the applicant
maintained that the Supreme Court's order quashing the decision of
4 December 2002 was made on his co-defendants' appeals only, not
his appeal of 5 December 2002.
206. The Court considers, firstly, that the examination of an
appeal more than two years after it was lodged obviously failed to
meet the "speediness" requirement of Article 5 з 4. It need not,
however, determine whether the applicant's appeal of 5 December
2002 was considered because the Supreme Court expressly refused to
take cognisance of any arguments concerning the substantive
aspects of the lawfulness of the applicant's detention or to remit
that matter for consideration by a lower court. Such a refusal
clearly infringed the applicant's right to take proceedings by
which the lawfulness of his detention would be decided.
207. The Court finds that there has been a violation of Article
5 з 4 of the Convention on account of the failure to consider the
substance of the applicant's appeals against the judicial
decisions of 18 November and 4 December 2002.
3. Summary of the findings
208. The Court has found a violation of Article 5 з 4 of the
Convention on account of:
- the length of proceedings on the applicant's appeal against
the decision of 28 April 2001;
- the failure to examine "speedily" his application for release
of 4 September 2001 and his appeal against the decision of 13
March 2002;
- the failure to examine his appeals against the extension
order of 9 January 2002;
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