Постановление Европейского суда по правам человека от 30.07.2009 «Дело Ламажик (lamazhyk) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF LAMAZHYK v. RUSSIA
(Application No. 20571/04)
JUDGMENT*
(Strasbourg, 30.VII.2009)
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*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 Lamazhyk v. Russia,

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

Nina {Vajic}*, President,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 7 July 2009,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 20571/04) 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 Orlan Kan-oolovich Lamazhyk ("the applicant"), on 12 April 2004.

2. The applicant was represented by Mr S. Damdyn, a lawyer practising in the town of Kyzyl, Tyva Republic. The Russian Government ("the Government") were represented by Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that his detention on remand had been unlawful and excessively long, that the domestic courts had delayed examination of detention issues and that the criminal case against him had not been examined within a reasonable time.

4. On 14 November 2006 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).

5. 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
6. The applicant was born in 1974 and lived until his arrest in the town of Kyzyl in the Tyva Republic of the Russian Federation.

A. Institution of criminal proceedings
and the applicant's arrest
7. On 21 January 2000 criminal proceedings were instituted against the applicant on suspicion of several counts of aggravated robbery. On the following day he was arrested. Three days later, however, his release was authorised on condition that he did not leave his town of residence.

8. On 3 March 2000 the head of the investigative unit of the Ministry of Internal Affairs of the Tyva Republic authorised the applicant's arrest in a decision which, in so far as relevant, read:

"On the night of 20 - 21 January 2000, at approximately midnight, [the applicant], who is unemployed, acting with mercenary intent for the purpose of stealing another's property, in collusion with Mr O. and unidentified persons, arrived by car... at the village of Khalbus-Dash... [and], having unlawfully entered a house and used weapons, attacked Mr Kh. and Mr D. After beating the victims Mr Kh. and Mr D. and having tied their hands, [the applicant], Mr O. and unidentified individuals, issuing threats of murder, killed 14 [cows], placed their bodies in the cars and stole property, thus causing the victims Mr O., Mr Or. and Mr D. pecuniary damage in the amount of 78,430 roubles, and fled the crime scene.

Having regard to the threat which the committed criminal offence poses to society and taking into account that [the applicant], if at liberty, may obstruct the establishment of the truth in the criminal case and may also abscond from the investigation and the court...

[I] ORDER:

1. That a measure of restraint in the form of arrest should be applied to [the applicant], who is to be informed of this, against his signature on a copy of the present decision..."
The decision bore the applicant's signature under the last printed paragraph, confirming that the decision had been served on him on 17 May 2000.

9. On 4 March 2000 the head of the investigative unit placed the applicant on the wanted persons list. The relevant part of the decision read:

"On 3 March 2000 a decision charging [the applicant] with having committed a crime proscribed by Article 162 § 3 (b) of the Russian Criminal Code and a warrant for his arrest were issued, given the particular gravity and dangerous nature of the crime committed by him. On the same day [police officers] were authorised to bring [the applicant] to the pre-trial investigating authorities for the reading out of the charges and his questioning as an accused. However, the accused, [the applicant], was not found at his place of residence... [It] was established that he left for the Barun-Khemchinskiy District in the Tyva Republic. His exact location was not discovered."
10. On 6 March 2000 the applicant was arrested. On the following day the Kyzyl District Prosecutor authorised his detention on remand.

B. Extensions of detention by prosecution authorities
11. On 9 June 2000 the acting Prosecutor of the Tyva Republic, by the same decision, extended the applicant's and his co-defendant's detention until 21 July 2000, relying on the particular gravity of the charges against them and the likelihood that they would pervert the course of justice and abscond if released.

12. The applicant's and his co-defendants' detention was further extended on 13 July, 10 and 23 October 2000 until 21 October and 6 November 2000 and 21 January 2001 respectively, with reference to the same grounds as in the decision of 9 June 2000.

C. Trial proceedings and further detention on remand
13. On 20 January 2001 the applicant was committed for trial before the Supreme Court of the Tyva Republic. According to the Government, the applicant's detention from 21 January to 20 March 2001 was not covered by any legal order as the domestic authorities were not required to issue one under the legislation governing criminal procedure.

D. First round of additional investigation
14. On 15 February 2001 the Supreme Court of the Tyva Republic adjourned the examination of the criminal case because one of the applicant's co-defendants had violated the conditions of his release on bail and had absconded. The case file was sent to the Prosecutor of the Tyva Republic. The Supreme Court also noted that the prosecution authorities were to "determine the issue of the application of a measure of restraint [in respect of the applicant and his co-defendants]".

15. The Supreme Court of the Tyva Republic resumed proceedings on 5 March 2001 and fixed a hearing for 12 March 2001. That hearing was adjourned because the victims and a lawyer failed to appear.

E. Second transfer of the case for additional investigation
16. On 20 March 2001 the Supreme Court of the Tyva Republic returned the case file to the prosecution authorities with an order to correct certain serious procedural defects, noting that the defence rights had been violated. In the same decision the Supreme Court held that the measure of restraint applied to the co-defendants, including the applicant, should "remain unchanged" due to the gravity of the charges against them.

17. On 13 June 2001 the Supreme Court of the Russian Federation, acting on appeals from the applicant's co-defendants, upheld the decision of 20 March 2001, endorsing the reasons given by the lower court.

18. On 20 July 2001 the acting Prosecutor of the Tyva Republic, relying on the gravity of the charges and the defendants' liability to abscond, pervert the course of justice and re-offend, in a single decision, extended the applicant's and his co-defendants' detention until 20 August 2001. A further extension until 20 September 2001 was ordered by a deputy Prosecutor General of the Russian Federation, with reference to the same grounds.

F. Third round of additional investigation.

Further extension of the applicant's detention
and trial proceedings
19. On 14 September 2001 the prosecution authorities returned the case file to the Supreme Court of the Tyva Republic, which on 2 October 2001 remitted the case again for additional investigation, noting serious violations of the defence rights, which had not been remedied during the previous referral of the case file to the prosecution authorities. The Supreme Court also noted that the defendants should remain in custody, given the gravity of the charges against them.

20. Having received the case file, on 11 October 2001 the first deputy prosecutor of the Tyva Republic extended the applicant's and co-defendants' detention until 11 November 2001, relying on the previously used grounds, namely the gravity of the charges and the defendants' liability to abscond, reoffend and pervert the course of justice.

21. On 8 November 2001 the additional investigation ended and the Supreme Court of the Tyva Republic received the case file. It fixed the first hearing for 6 December 2001. As follows from copies of court minutes presented by the Government, the hearing of 6 December 2001, and the following hearings scheduled for 10 January and 12 March 2002, were adjourned because the presiding judge was involved in other unrelated proceedings.

22. In the meantime, the composition of the bench changed: a new presiding judge and lay assessor were assigned to the case. Between 12 March and 13 June 2002 the Supreme Court of the Tyva Republic fixed five hearings, of which three were adjourned because the co-defendants' lawyers failed to appear, one hearing was rescheduled because the victims did not attend and one hearing was adjourned because it was necessary to serve a co-defendant with a copy of the indictment bill in a language he understood.

G. Decision of 13 June 2002 to refer
the case for additional investigation
23. On 13 June 2002 the Supreme Court of the Tyva Republic, having found that the prosecution authorities had committed serious procedural violations at the indictment stage, referred the case back for additional investigation with an order to respect the rights of the defendants, including their right to the services of an interpreter, etc. The Supreme Court also stressed that the defendants should remain in detention.

24. On 15 November 2002 the Supreme Court of the Russian Federation quashed the decision of 13 June 2002 in the part concerning the referral of the case for additional investigation and sent the case for examination on the merits by the Supreme Court of the Tyva Republic. At the same time the Supreme Court of the Russian Federation held that there were no grounds to change the measure of restraint applied to the defendants and that they should therefore remain in custody.

H. New round of trial proceedings.

Detention issues and conviction
25. After having received the case file on 4 February 2003, the Supreme Court of the Tyva Republic fixed the first hearing for 12 February 2003. That hearing was adjourned because the co-defendants' counsel failed to appear. The subsequent two hearings, listed for 3 and 19 March 2003, were postponed for the same reason.

26. On 24 March 2003 the Supreme Court of the Tyva Republic authorised an extension of the defendants' detention for an additional three months, until 24 June 2003, holding as follows:

"Taking into account the prosecutor's arguments that [the defendants] are charged with a criminal offence which belongs to the category of particularly serious [offences], punishable by a maximum of 10 years' imprisonment, [and] having regard to the particular complexity of the criminal case and [the fact] that the release from custody of the defendants, who pose an increased danger to society, may impede considerably a thorough, complete and objective examination of the circumstances of the case, the measure of restraint applied to the defendants should remain unchanged."
27. Of the three hearings scheduled between 26 March and 24 June 2003 by the Supreme Court of the Tyva Republic, two were adjourned because the co-defendants' lawyers and the victims failed to appear and one hearing was postponed to provide counsel with additional time to study the materials of the case file.

28. On 24 June 2003 the Supreme Court of the Tyva Republic, using identical wording as that in the decision of 24 March 2003, extended the defendants' detention until 24 September 2003.

29. Between 24 June and 25 September 2003 the Supreme Court of the Tyva Republic fixed four hearings, of which two were adjourned because the defence counsel failed to appear or were on annual leave, one hearing was postponed because a co-defendant was ill and one was rescheduled due to a victim's failure to attend.

30. On 25 September 2003 the Supreme Court of the Tyva Republic once again extended the defendants' detention for an additional three months, until 24 December 2003, invoking the same grounds as in the previous two detention orders of 24 March and 24 June 2003.

31. The applicant's lawyer appealed against the detention order of 25 September 2003, arguing that the applicant's detention from 24 to 25 September 2003 had not been covered by any legal order, in violation of the requirements of the Russian Code of Criminal Procedure and that the detention in general was excessively long.

32. On 4 December 2003 the Supreme Court of the Russian Federation upheld the detention order of 25 September 2003, noting that the applicant's and his co-defendants' detention had been regularly extended in compliance with the requirements of the Russian legislation on criminal procedure. It further stressed that in extending the defendants' detention the Supreme Court of the Tyva Republic had correctly relied on the gravity of the charges. As regards the detention from 24 to 25 September 2003, the Supreme Court of the Russian Federation held that the detention had been lawful, since the prosecution authorities had submitted the application for the extension before 24 September 2003 and the Supreme Court of the Tyva Republic had merely scheduled the hearing for 25 September 2003.

33. In the meantime, the Supreme Court of the Tyva Republic listed nine hearings between 25 September and 4 December 2003. Of those hearings, two were adjourned because the victims failed to appear, three hearings were rescheduled because the co-defendants' counsel were either involved in other proceedings or failed to appear, one hearing