Постановление Европейского суда по правам человека от 01.04.2010 «Дело Гултяева (gultyayeva) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIFTH SECTION
CASE OF GULTYAYEVA v. RUSSIA
(Application No. 67413/01)
JUDGMENT*
(Strasbourg, 1.IV.2010)
____________________________
*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 Gultyayeva v. Russia,

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

Peer Lorenzen, President,

Renate Jaeger,

Karel Jungwiert,

Rait Maruste,

Anatoly Kovler,

Mirjana Lazarova Trajkovska,

Zdravka Kalaydjieva, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 9 March 2010,

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

PROCEDURE
1. The case originated in an application (No. 67413/01) 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, Ms Nina Ivanovna Gultyayeva ("the applicant"), on 4 October 2000.

2. The applicant was represented by lawyers of the Memorial Human Rights Centre (Moscow) and the European Human Rights Advocacy Centre (London). The Russian Government ("the Government") were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that the conditions of her pre-trial detention had amounted to inhuman and degrading treatment prohibited by Article 3 of the Convention, that her detention pending trial in the period between 25 October and 4 November 2000 had been unlawful in breach of Article 5 § 1 (c) of the Convention and that her pre-trial detention had been excessively long in violation of Article 5 § 3 of the Convention.

4. On 21 September 2004 the Court decided to give notice of the application to the Government. On 13 June 2007 the Court further invited the parties to submit additional observations as regards the applicant's complaint under Article 3 concerning the period of her detention between 28 February and 29 March 2000. On the same date 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 1951 and lives in Moscow.

A. The applicant's detention
1. The applicant's arrest and her detention between
28 February and 2 March 2000
6. At the material time the applicant held the position of Head of the Department of Justice of the Sakhalin Region (начальник Управления юстиции Сахалинской области).

7. On an unspecified date an external audit commenced in the said Department and embezzlement of budgetary assets was subsequently established.

8. On 25 February 2000 criminal proceedings were instituted in this connection.

9. On 28 February 2000 at 8 a.m. the applicant retained a lawyer.

10. On 28 February 2000 at 8:30 a.m. the applicant was arrested and placed in custody. Being questioned as a suspect in the case, the applicant availed herself of the right to remain silent and applied for release on bail or subject to personal surety.

11. On 29 February 2000 the investigator in charge refused to release the applicant, stating that, according to Article 101 of the Code of Criminal Procedure, "a measure of restraint could only be changed in the circumstances when it was no longer needed" and that "there were no such circumstances" in the applicant's case.

12. On the same date the applicant resigned from her position.

13. On 1 March 2000 the investigator in charge remanded the applicant in custody. The order, which was approved by a deputy prosecutor of the Sakhalin Region, referred to the danger of the applicant's absconding, the risk of her obstructing the establishment of the truth and influencing the witnesses who had been her subordinates, and to the gravity of the charges against her.

14. The applicant's request to release her subject to the imposition of another measure of restraint was examined and refused by the investigator on 2 March 2000.

2. The applicant's detention between 3 March 2000
and 18 April 2000
15. On 6 March 2000 the applicant's lawyer appealed to the court against the applicant's pre-trial detention.

16. The application was examined by judge A. of the Yuzhno-Sakhalinsk Town Court ("the Town Court") on 10 March 2000. At the hearing the applicant and her counsel reiterated their request for the applicant's release in view of her poor health, the fact that she had family commitments and a good reference from her former place of work. The judge confirmed the lawfulness of the applicant's remand in custody, having based this decision on "the evidence in the applicant's case file, proving that she might abscond or influence the witnesses if released".

17. According to the applicant, the evidence referred to by Judge A. was a transcript of an audio tape recording of telephone conversations of another suspect, K. During one such conversation K. stated that "on Monday Nina Ivanovna will leave forever".

18. On 12 April 2000 the Sakhalin Regional Court ("the Regional Court") upheld the decision of 10 March 2000 on appeal.

19. Meanwhile, on 7 March 2000, formal charges of embezzlement and abuse of power had been brought against the applicant. Since the applicant's counsel was unable to attend the police station that day, the investigating authorities appointed another lawyer to assist her. However, in the absence of her counsel, the applicant refused to read and sign the decision to charge her.

20. On 15 March 2000 the applicant's lawyer challenged the decision of 7 March 2000 before the court, claiming that the applicant's right to defence had been violated. He also requested the court to release the applicant pending trial.

21. On 4 April 2000 judge A. of the Town Court disallowed the above complaint, having noted that the allegations advanced by the applicant's representative had already been examined and rejected by the courts during the first judicial review of the applicant's detention.

22. On 3 May 2000 the Regional Court set aside the above decision and discontinued the proceedings in respect of the complaint of 15 March 2000. The court noted, inter alia, that the applicant was entitled to appeal against the alleged infringement of her right to defence at the trial stage.

3. The applicant's detention between 19 April 2000
and 20 June 2000
23. On 19 April 2000 the regional prosecutor extended the applicant's detention until 25 June 2000 on the ground that she might flee the trial or put pressure on witnesses while at liberty.

24. On 17 May 2000 the applicant challenged this order before the court, and requested to be released. She maintained, in particular, that she could not hinder the investigation or influence the witnesses, since the audit had terminated on 13 April 2000. The applicant also referred to poor conditions of her detention and deterioration of her health.

25. On 25 May 2000 judge A. of the Town Court dismissed the applicant's complaint as unfounded, with reference to the gravity of the charges, "the applicant's personality" and "the evidence in the applicant's case file, proving that she might abscond or influence the witnesses if released". The judge also noted that the investigating authorities had produced a medical report stating that the applicant had no need of medical treatment.

26. In her appeal against the decision of 25 May 2000 the applicant stated, inter alia, that Judge A. should have been disqualified from reviewing her detention, as this judge had already considered and rejected her applications for release on two previous occasions.

27. On 25 June 2000 the Regional Court upheld the decision of 25 May 2000. With respect to the applicant's argument concerning Judge A., the court noted that the domestic law entitled a judge to examine a repeated complaint about the lawfulness of detention.

28. On 30 May 2000 a deputy prosecutor of the Sakhalin Region refused the applicant's request for release.

29. On 2 June 2000 the applicant was charged with a number of additional counts relating to embezzlement, abuse of power and forgery.

30. On 13 June 2000 the preliminary investigation was terminated and the applicant and her lawyer began studying the case file.

4. The applicant's detention between 21 June
and 24 August 2000
31. On 21 June 2000 the regional prosecutor ordered the extension of the applicant's detention until 10 August 2000.

32. The applicant appealed against the prosecutor's decision, claiming that she was unable to obstruct the establishment of the truth or influence the witnesses, since the investigation had already terminated. She also referred to her poor state of health.

33. On 24 July 2000 judge B. of the Town Court dismissed the applicant's complaint, holding that her detention was "in accordance with law" and necessary in view of the seriousness of the charges and the applicant's personality. The judge also took note of medical certificates produced by the applicant's lawyer as well as the aforementioned medical report adduced by the investigating body, and found the applicant's allegations that she was in poor health unsubstantiated.

34. On 13 September 2000 the Regional Court upheld the above decision on appeal. The court noted that the applicant was charged with a serious criminal offence and its severity alone could, according to Article 96-2 of the Code of Criminal Procedure, permit her continued detention.

35. On 8 August 2000 the applicant's counsel lodged a complaint against the investigator in charge, requesting the court to order the applicant's inpatient examination by an independent medical authority.

36. On 15 August 2000 Judge B. of the Town Court declined jurisdiction to examine the complaint, stating that it fell within the competence of the prosecutor. This decision was upheld on appeal by the Regional Court on 25 October 2000.

37. In the meantime, on 7 August 2000, the regional prosecutor extended the period of the applicant's remand in custody until 25 August 2000.

38. On 15 August 2000 the applicant appealed to the court against the prosecutor's order. Her complaint was assigned to Judge A. of the Town Court.

39. The applicant sought the withdrawal of the judge. On 18 August 2000 Judge A. dismissed the challenge.

40. At the hearing on 21 August 2000 the applicant and her defence counsel claimed that the preliminary investigation had been completed, that the applicant had finished studying her case file, and that therefore the investigating authorities had no reasons to believe that the applicant might flee or obstruct the establishment of the truth if at large. Moreover, the applicant posed no danger to the public and suffered from various health problems, which required proper medical treatment.

41. Having heard the parties, Judge A. found that the applicant should remain in custody, on account of the gravity of the charges and the risk of her absconding. The judge further rejected the applicant's complaints about her health as groundless. This decision was upheld on appeal by the Regional Court on 13 September 2000.

42. On 23 August 2000 the investigator refused to release the applicant, making a general reference to the absence of any circumstances proving that her detention was no longer needed.

5. The applicant's detention between 25 August 2000
and 25 October 2000
43. On 25 August 2000 the applicant's case was forwarded to the Town Court for examination.

44. On 4 September 2000 Judge K. of the Town Court remitted the case for a further investigation and stated that the applicant should remain in custody in view of the seriousness of the charges.

45. The applicant appealed against the above decision in so far as it concerned her detention.

46. On 25 October 2000 the Regional Court dismissed the appeal.

47. Meanwhile, on 22 August 2000 the deputy Prosecutor General had authorised the applicant's detention until 25 October 2000. This order was served on the applicant on 15 September 2000.

48. On 17 September 2000 the applicant challenged the extension of her custody period before the Town Court, complaining, in particular, that she had not been notified of the order of 22 August 2000 in time.

49. At the hearing on 25 September 2000 the applicant also referred to the poor state of her health and the absence of any risk that she might abscond or hinder the investigation, which was at an end. Her arguments were examined and rejected as unfounded. Having acknowledged the fact that the order of 22 August 2000 had not been served on the applicant in due time, the court held that this fact did not affect the legal force of the extension order or the lawfulness of the applicant's detention. It therefore ordered the applicant's continued detention, with reference to the gravity of the charges against her. On 25 October 2000 the Regional Court upheld the first-instance decision.

50. On 16 October 2000 the applicant requested the investigator to release her.

51. On 17 October 2000 the investigator informed the applicant that there were no reasons to release her.

52. On 20 October 2000 the case was again transferred to the Town Court for examination on the merits.

6. The applicant's detention between 26 October 2000
and 6 February 2001
53. On 4 November 2000 Judge K. of the Town Court scheduled a hearing in the applicant's case and held that "in view of the gravity of the charges [against the applicant] the measure of restraint applied to her should remain unchanged". The decision did not specify the time-limit for the applicant's detention, nor did it refer to any other matters regarding the lawfulness of her detention.

54. On 17 November 2000 the applicant appealed against the above decision in so far as it related to her detention. She claimed that between 25 October 2000, when the period of her remand in custody had expired, and 4 November 2000 her detention had had no basis in domestic law. She further complained that the court had ignored her submissions about the state of her health.

55. On 13 December 2000 the Regional Court dismissed the applicant's appeal, finding that her detention was lawful. The court stated that the applicant had been charged with serious crimes, and could be detained on the sole ground of the dangerousness of those offences. With regard to the applicant's argument