Постановление Европейского суда по правам человека от 22.12.2009 «Дело Макаренко (makarenko) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MAKARENKO v. RUSSIA
(Application No. 5962/03)
JUDGMENT*
(Strasbourg, 22.XII.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 Makarenko 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,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 3 December 2009,

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

PROCEDURE
1. The case originated in an application (No. 5962/03) 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 Anatoliy Mikhaylovich Makarenko ("the applicant"), on 4 December 2002.

2. The applicant was represented by Mr E. Liptser, a lawyer with the International Protection Centre in Moscow. 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 arrest had been unlawful, that the length of his pre-trial detention had been excessive, that the domestic courts had either failed to examine or had delayed the examination of his requests for release or appeals against the detention orders, that he had been denied a "fair hearing" in the proceedings on the charge of criminal libel and that his freedom of expression had been violated.

4. On 22 June 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).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1949 and lived until his arrest in the town of Smolensk. He is a former deputy governor of the Smolensk Region.

A. Criminal proceedings on the charges of fraud,

money laundering, unlawful possession of ammunition
and forgery of documents
1. Applicant's arrest and authorisation
of his detention on remand
6. On 24 October 2002 criminal proceedings were instituted against several officials of the Smolensk Regional Council on suspicion of money laundering and fraud.

7. On 2 December 2002 the applicant was arrested in the Smolensk Regional Prosecutor's office where he had been invited for questioning. He was transferred to the Smolensk Regional Department of the Federal Security Service (hereinafter - the FSB). A record of his arrest, drawn up at 2 p.m. on the same day and produced by the Government, indicated that certain documents were found and seized from the applicant's office. Those documents and other evidence, including witness statements, linked the applicant to or placed him in charge of private and State-owned enterprises implicated in money laundering and fraudulent activities and served as the basis for suspecting the applicant of having participated in an aggravated fraud. The relevant part of the record read as follows:

"[The applicant], who is suspected of having committed a serious criminal offence, was arrested according to subparagraphs 1, 2 and 3 of paragraph 1 of Article 91 of the Russian Code of Criminal Procedure, and because the pre-trial investigating authorities have sufficient grounds to believe that, if released, he may abscond..., threaten witnesses, destroy evidence or in any other way obstruct the investigation in the present case."
The applicant signed the record, making a handwritten objection to his arrest and the accusations against him.

8. On the following day a senior investigator of the Smolensk Regional FSB Investigative Division, with the consent of the acting Smolensk Regional Prosecutor, lodged an application with the Leninskiy District Court of Smolensk, seeking authorisation for the applicant's detention on remand. The application contained a lengthy description of the fraudulent activities of a number of private and State-owned enterprises in which the applicant had allegedly taken part. The senior investigator also drew the District Court's attention to other circumstances warranting the applicant's detention, namely the likelihood that he would abscond and pervert the course of justice.

9. On 3 December 2002 the Leninskiy District Court authorised the applicant's detention, finding that he was accused of having committed a serious crime and that, if released, he might threaten witnesses, destroy evidence and obstruct justice.

10. The applicant's lawyer appealed against the decisions authorising the arrest and detention. In particular, she complained that there was no evidence which could serve as grounds for the applicant's arrest and that if such evidence did exist, it had not been listed in the record of the applicant's arrest. According to the lawyer, the authorities did not put forward any evidence justifying the conclusion that the applicant was liable to abscond or obstruct justice.

11. On 11 December 2002 the Smolensk Regional Court upheld the decision of 3 December 2002, holding as follows:

"Taking into account the circumstances of the case, the information concerning the personality of the accused, [the court finds that] the investigator's application is substantiated because [the applicant] may threaten witnesses, destroy evidence in the case and obstruct adjudication of the case."
12. Two weeks later, on 26 December 2002, the Leninskiy District Court rejected the lawyer's complaint concerning the applicant's arrest, finding that the arrest had been effected in compliance with Article 91 § 1 of the Russian Code of Criminal Procedure.

13. On 6 February 2003 the Smolensk Regional Court, endorsing the reasons given by the District Court, upheld the decision of 26 December 2002.

2. Extension of the applicant's pre-trial detention
(a) Detention order of 31 January 2003
14. On 31 January 2003 the Leninskiy District Court extended the applicant's detention until 24 April 2003, holding that there were no grounds warranting his release.

15. The applicant's lawyer appealed. In particular, she complained that the District Court had not put forward any reason necessitating the extension of the applicant's detention.

16. On an unspecified date the Smolensk Regional Court upheld the decision of 31 January 2003.

(b) Detention order of 22 April 2003
17. On 22 April 2003 the Leninskiy District Court extended the applicant's detention until 1 June 2003, reasoning that additional time was required to perform certain investigative actions. The District Court further held as follows:

"[The applicant] is accused of having committed a serious criminal offence; the court remanded him in custody because he was charged with a serious criminal offence, thus, there are no grounds for a change or annulment of [the preventive measure].

The court takes into account that the detention is extended only for one month and eight days.

The court takes into account that [the applicant] has minor children, however, in determining the issue of the extension of detention, the court has regard to the fact that [the applicant] is charged with an offence under Article 159 § 3 (b) of the Russian Criminal Code, that is with having committed a serious crime for which the most lenient penalty is five years' imprisonment."
18. The decision of 22 April 2003 was upheld on appeal.

(c) Detention order of 30 May 2003
19. On 30 May 2003 the Leninskiy District Court extended the applicant's detention until 1 September 2003, citing the same reasons as in the decision of 22 April 2003.

20. On 9 June 2003 the Smolensk Regional Court upheld the decision of 30 May 2003, accepting the District Court's reasoning that the applicant was charged with serious criminal offences and that the investigating authorities needed additional time.

(d) Request for the applicant's release
21. On 2 July 2003 the applicant's lawyer applied for the applicant's release under his own recognisance not to leave the town. The lawyer argued that the need to hold the applicant in custody had long ceased to exist as the pre-trial investigation had been closed. The lawyer further pointed to circumstances making the applicant's absconding improbable: the applicant had three minor children and permanent places of residence and work, and before his arrest the investigating authorities had summoned him on several occasions and he had never defaulted.

22. On 11 July 2003 the Leninskiy District Court dismissed the request for release. It held that the applicant had been charged with aggravated fraud, money laundering, unlawful possession of ammunition and forgery of documents. A month later the Smolensk Regional Court upheld the decision, endorsing the District Court's findings.

(e) Decision of 25 September 2003
23. On 25 September 2003 the Leninskiy District Court held a preliminary trial hearing, at which the applicant's lawyers petitioned for the applicant's release and discontinuation of the criminal proceedings against him. The District Court dismissed the request for release because the applicant was charged with serious criminal offences, and if released, could abscond or obstruct establishment of the truth. The District Court listed the first trial hearing for 8 October 2003.

24. The applicant's lawyers, Ms Liptser, Ms Karlova and Mr Kravchuk, appealed.

25. On 13 October 2003 the Leninskiy District Court returned the statement of appeal to Ms Liptser, stating that the applicant had refused her services.

26. Ten days later the president of Lawyer's office No. 10 of the Moscow City Bar Association informed the District Court that Ms Liptser and the applicant had signed an agreement according to which Ms Liptser had been entrusted with the authority to appeal against the decision of 25 September 2003. Ms Liptser's statement of appeal against the decision of 25 September 2003 was enclosed.

27. On 30 October 2003 the Leninskiy District Court accepted Ms Liptser's statement of appeal and sent it to the Smolensk Regional Court. Five days later the Regional Court, having heard the arguments by Ms Karlova and Mr Kravchuk, upheld the decision of 25 September 2003. The appeal statement lodged by Ms Liptser was examined by the Regional Court on 30 December 2003 and dismissed as unsubstantiated.

(f) Request for the applicant's release and decision of 8 October 2003
28. At the trial hearing on 8 October 2003 the Leninskiy District Court dismissed the applicant's lawyer's application for the applicant's release.

29. A week later the lawyer lodged an appeal against the District Court's decision.

30. On 18 November 2003 the Smolensk Regional Court, relying on Article 355 § 5 (2) of the Russian Code of Criminal Procedure, discontinued the appeal proceedings, finding that the release application had been examined and dismissed at the trial hearing and that such a decision was not amenable to appeal.

(g) Decision of 13 November 2003
31. On 13 November 2003 the Leninskiy District Court held a trial hearing. At that hearing the applicant's lawyer asked for the applicant's release under his own recognisance. The District Court dismissed the request, noting that there were no grounds for the release.

32. The applicant's lawyer, invoking Article 5 § 3 of the Convention, appealed against the decision of 13 November 2003.

33. On 30 December 2003 the Smolensk Regional Court upheld the decision of 13 November 2003. The Regional Court held that the grounds warranting the applicant's detention had not changed and, thus, the request for release had been dismissed lawfully.

(h) Detention order of 19 November 2003
34. On 19 November 2003 the Leninskiy District Court dismissed another application for the applicant's release. It held that no new grounds authorising the applicant's release had been established. That decision was upheld on appeal on 30 December 2003 by the Smolensk Regional Court, which endorsed the District Court's reasoning.

(i) Requests for release of 24 November 2003 and decisions of 29 December 2003 and 30 January 2004
35. On 24 November 2003 the applicant's lawyer requested the applicant's release on a written undertaking not to leave the town. The Leninskiy District Court refused to examine the request, finding that it was a mere restatement of the lawyer's previous release applications.

36. At the trial hearing on 29 December 2003 the applicant unsuccessfully asked the District Court to release him. On 6 April 2004 the Smolensk Regional Court examined the lawyers' appeal against the decision of 29 December 2003, upholding that decision as lawful. The Regional Court confirmed the District Court's opinion that there were no grounds authorising the applicant's release.

37. On 30 January 2004 the District Court adjourned the proceedings because the applicant's co-defendant was ill. The lawyers unsuccessfully petitioned for the applicant's release. On 16 March 2004 the Regional Court upheld the decision of 30 January 2004 because there were no new grounds justifying the release.

(j) Detention order of 26 February 2004
38. On 26 February 2004 the Leninskiy District Court extended the applicant's detention until 26 May 2004. The relevant part of the decision read as follows:

"[The applicant] is accused of having committed intentional mercenary and serious crimes. The circumstances which served as the basis for remanding [the applicant] in custody have not changed. New circumstances justifying [the applicant's] release... have not appeared.

The trial investigation has not been finished, [the court] continues to examine the evidence. If released, the accused may obstruct establishment of the truth in the case, abscond or commit new crimes."
39. On 30 March 2004 the Smolensk Regional Court endorsed the reasons given by the District Court on 26 February 2004 and upheld that decision.

(k) Detention order of 26 May 2004
40. On 26 May 2004 the Leninskiy District Court extended the applicant's detention until