Постановление Европейского суда по правам человека от 30.07.2009 «Дело Сергей Медведев (sergey medvedev) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SERGEY MEDVEDEV v. RUSSIA
(Application No. 3194/08)
JUDGMENT*
(Strasbourg, 30.VII.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 Sergey Medvedev 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,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, 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. 3194/08) 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 Sergey Sergeyevich Medvedev ("the applicant"), on 21 November 2007.

2. The applicant was represented by Mr M. Stepanov, a lawyer practising in Moscow. The Russian Government ("the Government") were initially represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin.

3. The applicant alleged that his detention on remand had been unlawful and excessively long.

4. On 30 April 2008 the President of the First Section decided to communicate the complaint about the allegedly excessive length of detention 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 President made a decision on priority treatment of the application (Rule 41 of the Rules of Court).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1983 and lives in the Moscow region.

A. Background information
6. The applicant was a member of a public association, the National Bolshevik Party. On 15 November 2005 the Supreme Court of the Russian Federation ordered its dissolution. On 19 January 2006 the Federal Registration Service of the Ministry of Justice refused an application for registration of a political party under the same name. Party members challenged the refusal before the Taganskiy District Court of Moscow.

7. On 13 April 2006 fifteen party members, including the applicant, attended the Taganskiy District Court for a hearing concerning the refusal to register the National Bolshevik Party. The applicant alleged that near the court building they had been attacked by a group of forty people and had had to defend themselves. According to the Government, the party members, including the applicant, had assaulted passers-by with gas guns and rubber truncheons.

B. Criminal proceedings against the applicant
8. On 15 May 2006 the applicant attended an assembly of members of the National Bolshevik Party. The police broke down the door and arrested him.

9. On 16 May 2006 the applicant was charged with participation in mass disorder, involving the use of gas guns and assault and battery, an offence under Article 213 § 2 of the Criminal Code.

10. The investigator applied to the Tverskoy District Court of Moscow for a custody order. He submitted that the applicant had been charged with a serious criminal offence, had no permanent place of residence in Moscow and had been previously fined in administrative proceedings for commission of disorderly acts. Therefore, there were reasons to believe that he might abscond or reoffend.

11. On 17 May 2006 the Tverskoy District Court ordered the applicant's placement in custody, referring to the gravity of the charge and the risk of his absconding or reoffending.

12. The applicant appealed. He complained that the District Court had disregarded pertinent facts such as his lack of a criminal record, his permanent residence and positive references and his frail health. The conclusion that he might flee or reoffend was hypothetical and was not supported by relevant facts.

13. On 7 June 2006 the Moscow City Court upheld the decision on appeal, finding that it had been lawful, well-reasoned and justified. Before ordering the applicant's placement in custody the District Court had reviewed the materials submitted by the prosecution and had taken into account the applicant's character and personal situation.

14. On 30 October 2006 a member of Parliament offered his personal guarantee that the applicant would not abscond.

15. On 14 September 2006 the Tverskoy District Court extended the applicant's detention until 15 November 2006, finding that there was no reason to vary the preventive measure. On 18 December 2006 the Moscow City Court upheld the extension order on appeal, finding that it had been lawful and justified.

16. On 13 November 2006 the Tverskoy District Court extended the applicant's detention until 16 January 2007 for the same reasons as before. On 10 January 2007 the Moscow City Court upheld the extension order on appeal.

17. On an unspecified date in December 2006 an additional charge of infliction of injuries, an offence under Article 112 § 2 of the Criminal Code, was brought against the applicant.

18. On 16 January 2007 the Tverskoy District Court extended the applicant's detention until 16 March 2007, referring to the gravity of the charges, the risk that he might abscond, reoffend or interfere with the proceedings and the need for further investigation.

19. In his appeal submissions the applicant asked to be released on bail. On 14 February 2007 the Moscow City Court upheld the extension order on appeal, finding that it had been lawful, well-reasoned and justified.

20. On an unspecified date the investigation was completed and six defendants including the applicant were committed for trial.

21. On 12 March 2007 the Taganskiy District Court of Moscow scheduled a preliminary hearing for 20 March 2007 and held that all the defendants should remain in custody. It found that the defendants had been charged with a serious offence committed by an organised group, some members of which had not yet been identified, referred to the defendants' characters and concluded that they might abscond or intimidate the victims and witnesses.

22. On 27 March 2007 the Taganskiy District Court held a preliminary hearing. It refused the defendants' requests for release, citing the gravity of the charges against them and the risk of their absconding, reoffending or obstructing justice. In respect of the applicant's "character" the court noted that he had a record of administrative offences.

23. On 24 May 2007 the Taganskiy District Court remitted the case for further investigation and ordered that all the defendants should remain in custody. It found that the defendants' characters and the gravity of the charges against them gave reasons to believe that they might abscond, reoffend or interfere with the proceedings. In respect of the applicant's "character" the court noted that he had a record of administrative offences.

24. On 29 June 2007 the Tverskoy District Court extended the applicant's detention until 6 August 2007. The court found that the case involved several defendants and was complex. Some of the defendants had been at large for a long time and some accomplices had not yet been identified. The complexity of the case justified the length of the applicant's detention. Given the gravity of the charges against the applicant, his record of administrative offences and his unemployment, he might abscond or interfere with the establishment of the truth in some other way if released.

25. In his appeal submissions the applicant repeated his arguments that the District Court's conclusions had not been supported by relevant facts, while he had produced a personal guarantee from a member of Parliament and had demonstrated that he had positive references. He also argued that the case was not complex and claimed that his detention had exceeded "a reasonable time". On 1 August 2007 the Moscow City Court upheld the extension order on appeal, finding that it had been lawful and justified.

26. On an unspecified date the defendants were again committed for trial.

27. On 26 July 2007 the Taganskiy District Court scheduled a preliminary hearing for 8 August 2007 and ordered that the defendants should remain in custody in the meantime. The court found that the defendants had been charged with a serious offence committed by an organised group, some members of which had not yet been identified, and concluded that they might abscond or intimidate the victims and witnesses. It further noted that the defendants' assurances that they had no intention of absconding were unconvincing, and held that there was no reason to apply a more lenient preventive measure.

28. On 8 August 2007 the Taganskiy District Court held a preliminary hearing and ordered that all the defendants should remain in custody for the same reasons as before.

29. On 12 September 2007 the applicant and his co-defendants lodged applications for release with the Taganskiy District Court. On the same day the Taganskiy District Court rejected the applications. It noted that the defendants' arguments had already been examined and rejected many times when the extension orders had been issued. It found that the grounds for the defendants' detention mentioned in the extension orders were still pertinent and that it was still necessary to hold them in custody. The defendants had been charged with a serious criminal offence committed by an organised group, some members of which had not yet been identified. Given the gravity of the charges against them, they might abscond, reoffend or interfere with the establishment of the truth if released.

30. On 26 December 2007 the Taganskiy District Court extended the defendants' detention until 12 April 2008. It found that the grounds for their detention mentioned in the previous extension orders were still pertinent and that a risk remained of their absconding, reoffending or obstructing justice. The court also noted that the defendants' arguments about the absence of corpus delicti in their actions and about the lack of evidence of their involvement in the commission of the offence in question were without substance because, in extending the defendants' detention, the court could not make any findings as to their guilt or innocence.

31. On 24 March 2008 the Taganskiy District Court convicted the defendants as charged and sentenced the applicant to two years and six months' imprisonment.

II. Relevant domestic law
32. Since 1 July 2002 criminal law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law No. 174-FZ of 18 December 2001).

33. "Preventive measures" (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).

34. When deciding on a preventive measure, the competent authority is required to consider whether there are "sufficient grounds to believe" that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). 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 99).

35. Detention may be ordered by a court if the charge carries a sentence of at least two years' imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

36. After arrest the suspect is placed in custody "during the investigation". The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 109 §§ 1 - 3). The period of detention "during the investigation" is calculated to the day when the prosecutor sends the case to the trial court (Article 109 § 9).

37. From the date the prosecutor forwards the case to the trial court, the defendant's detention is "before the court" (or "during the judicial proceedings"). The period of detention "during the judicial proceedings" is calculated to the date the judgment is given. It may not normally exceed six months, 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 of the Convention
38. The applicant complained under Article 5 § 1 (c) of the Convention that there had been no grounds to detain him and that the domestic courts had not had due regard to the defence's arguments. Under Article 5 § 3, he complained that his right to trial within a reasonable time had been infringed and alleged that the detention orders had not been founded on sufficient reasons. The relevant parts of Article 5 read as follows:

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

...

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

...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial..."
A. Admissibility
39. As regards the applicant's complaint that his detention had been unlawful, the Court notes that on 17 May 2006 the Tverskoy District Court of Moscow remanded the applicant in custody because of the gravity of the charges against him. The applicant's detention was subsequently extended on several occasions by the domestic