Постановление Европейского суда по правам человека от 29.04.2010 «Дело Юрий Яковлев (yuriy yakovlev) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF YURIY YAKOVLEV v. RUSSIA
(Application No. 5453/08)
JUDGMENT*
(Strasbourg, 29.IV.2010)
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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 Yakovlev v. Russia,

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

Nina {Vajic}*, President,

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

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Andre} Wampach, Deputy Section Registrar,

Having deliberated in private on 30 March 2010,

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

PROCEDURE
1. The case originated in an application (No. 5453/08) 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 Yuriy Yevgenyevich Yakovlev ("the applicant"), on 11 December 2007.

2. The applicant was represented by Mr S. Antonov, a lawyer practising in Moscow. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant complained, in particular, that the length of his detention was excessive.

4. On 5 June 2009 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). Further to the applicant's request, the Court granted priority to the application (Rule 41 of the Rules of Court).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1951 and lived in Moscow until his arrest.

A. Applicant's arrest and authorisation of his detention
6. On 10 November 2006 the Prosecutor General's office instituted criminal proceedings on charges of aggravated bribery and abuse of position against a number of officials of the Federal Mandatory Health Insurance Fund ("the Fund"), including the applicant. The latter was employed as the first deputy director of the Fund until August 2006, when he resigned.

7. The applicant was not arrested, as on 24 November 2006 he gave a written undertaking to comply with investigators' orders and summons. During the subsequent eight months he fully complied with the written undertaking and actively participated in the criminal investigation, attending investigative actions whenever summoned by the Prosecutor General's office (at least fifteen times in eight months).

8. On 2 July 2007 the deputy head of the Trade Security Service of the Federal Security Service ("the FSB"), lieutenant-general V., sent a letter to a senior investigator of the Prosecutor General's Office responsible for the applicant's criminal case. The relevant part of the letter read as follows:

"[We] have received information that the former first deputy director of the Fund, [the applicant], if informed that documents [for his arrest] are being prepared, will take steps similar to those [taken] in November 2006 when he, having used his extensive connections in medical institutions, admitted himself to a hospital for inpatient treatment.

Furthermore, according to the received information [the applicant], being a very cautious person and responding to all summons by the investigator, at the same time takes measures to pervert the investigation by inciting individuals who have information about his criminal activities to distort that information.

This is just to inform you."
9. On the following day, at approximately 2.30 p.m., the applicant was arrested. A record of the arrest, in so far as relevant, read as follows:

"It is suspected that [the applicant] in 2005 [and] 2006, having acted as the first deputy director of [the Fund] in Moscow together with an organised group and using his official position, had received bribes in large amounts from heads of regional mandatory medical insurance funds and representatives of pharmaceutical companies in exchange for provision of resources from the fixed insurance reserve of the Federal Fund and insurance funds set aside to supply citizens with medicines..., that is [the applicant is suspected] of a criminal offence proscribed by Article 290 § 4 (a) [and] (d) of the Russian Criminal Code.

...

In respect of his arrest [the applicant] stated: there are no grounds for the arrest; [I] did not attempt to abscond from the investigation; [I] did not try to prevent the establishment of the truth in the case; [I] did not make attempts to influence the participants in the proceedings or to destroy evidence; [I] did not commit any crime while at liberty. [I] have a permanent place of residence in Moscow.

The lawyer adds that [the applicant] is in a poor state of health."
The applicant's lawyer present during the arrest made a handwritten note in the arrest record, insisting on an immediate medical examination of the applicant, arguing that the latter was suffering from a number of serious illnesses, felt ill during the arrest and could not adequately respond to the investigator's actions.

10. On 3 July 2007 the applicant was brought before a judge of the Basmanniy District Court of Moscow. The applicant's lawyer applied for an adjournment, arguing that he had had no time to study materials presented by the investigative authorities in support of their request for the applicant's arrest. The District Court dismissed the lawyer's request, noting that the criminal procedural law did not allow an adjournment on the grounds cited by the applicant's lawyer, and authorised the applicant's detention until 6 p.m. on 4 July 2007. The District Court stressed that the applicant's lawyers should use that time to prepare their arguments in defence. The decision was amenable to appeal, however, no appeal followed.

11. On 4 July 2007 the Basmanniy District Court remanded the applicant in custody, holding as follows:

"As it follows from the case file materials, in 2005, in Moscow, [the applicant] acting as a public official - the first deputy director of the Federal Fund... entrusted with organisational [and] regulatory functions within the financial credit entity, on mercenary grounds for personal benefit and by way of receiving large sums in bribes for actions in the interests of regional funds of mandatory medical insurance, pharmaceutical and other entities which participate in medical insurance programmes and supplies of medicines and equipment for medical prophylactic entities of the Russian Federation, organised, with the director of the Federal Fund, Mr T., and a deputy director of the Federal Fund, Ms K. a stable organised criminal group which [a number of other officials of the Fund] joined.

According to the division of roles [the applicant], Ms K. and Mr T. were in charge of criminal activities [and] arranged agreements with heads and representatives of the regional funds, pharmaceutical and other entities according to which requests from those funds were to be approved in return for large sums of money, representing a certain percent of a subvention sum given to them or their intermediaries.

When the Federal Fund received requests from regional funds with which indicated agreements had been reached, [the applicant], Mr T. and Ms K., abusing their official position, personally indicated, in drafts of documents prepared for provision of subventions upon the received requests, the amount of a subvention which had to be paid to the regional funds.

Following subsequent examination of the requests in the Federal Fund, [the applicant], being a member of the "Commission of the Federal Fund...", ensured, by agreement with other participants of the crimes, the successful examination of [the requests].

When money was received as bribes, [the applicant], Ms K. and Mr T. divided it between members of the organised [criminal] group.

...

In 2005 - 06, having [organised the criminal group] to commit crimes together and having divided roles between them, the above-mentioned persons, abusing their official positions, received bribes of more than twelve million roubles from officials of regional funds, representatives of pharmaceutical and other legal entities, which were interested in regularly receiving subventions from the centralised resources of the Federal Fund, [the bribes] were divided between the members of the organised group.

...

In 2005 - 06 Ms K., in her office in Moscow..., on a number of occasions received in total 1,500,000 roubles from a Mr K. as a bribe. That sum was divided between Mr T., Ms K., [the applicant]...

On 24 November 2006 a senior investigator of the Prosecutor General's office... received the criminal case file and on the same day a measure of restraint in the form of a written undertaking to attend [investigative arrangements] was chosen in respect of [the applicant].

On 3 July 2007, at 2.27 p.m., [the applicant] was arrested in compliance with the requirements of Articles 91 and 92 of the Russian Code of Criminal Procedure as a person suspected of an offence under Article 290 § 4 (a), (d) of the Russian Criminal Code and on 4 July 2007, at 11.20 a.m., he was questioned in that capacity.

...

The investigating authorities ask for an authorisation of [the applicant's] detention, asserting that other measures of restraint... would not correspond to the interests of the investigation.

...

[The applicant's] lawyer stated that [the applicant's] poor state of health does not permit him to be detained.

[The applicant] has no intention of absconding from the investigation or trial, [he] is a Russian citizen, he is registered in Moscow, [he] is at the pre-retirement stage, [he] is a law-abiding citizen and he presented himself to the Prosecutor General's office whenever summoned, [he] is only characterised positively, that is why he asks the court to dismiss the investigator's request for his arrest and to apply another measure of restraint, in the form of bail.

...

Having examined and analysed the presented materials, the court considers that the application for the arrest should be accepted for the following reasons.

The criminal case was opened by the competent official on the basis of sufficient reasons. [The applicant] was arrested in accordance with the requirements of Articles 91 and 92 of the Russian Code of Criminal Procedure.

The [arrest] application is drawn up in accordance with criminal procedural norms and is presented to the court on an order from the competent prosecutor within the time-limit established by law. The materials presented to the court attest to the fact that [the applicant] was arrested lawfully on suspicion of a criminal offence.

While examining the issue of the application of the measure of restraint in the form of detention the court takes into account that [the applicant] is suspected of a crime which the law defines as a particularly serious [criminal offence]. If released, [the applicant] may continue with criminal activities, may abscond from the investigation and trial, may negatively influence prosecution witnesses and other participants in the criminal proceedings, may try to contact his accomplices who are on the run and may destroy or falsify evidence in the case.

Moreover, having connections in the law enforcement and other State bodies, [the applicant] may obstruct the identification and retrieval of [other] accomplices, thus influencing the lawfulness, objectivity and thoroughness of the criminal investigation.

According to the information provided by the head of the FSB Department on 2 July 2007, [the applicant] is now taking steps to obstruct the investigation by persuading persons who possess information pertaining to his criminal activities to distort the facts, and he is also liable to [take] other steps to avoid criminal responsibility.

The court has no reason not to trust that information.

As follows from the materials presented by the investigator, [the applicant] has not yet been served with the final bill of indictment, for objective reasons.

At the same time, the criminal investigation authorities suspect [the applicant] of a criminal offence established by Article 290 § 4 (a), (d) of the Russian Criminal Code, which the law places in the category of particularly serious [criminal offences], punishable by seven to twelve years' imprisonment, and [the applicant] acquired the status of a suspect as a result of evidence collected by the investigation in the case:

- video and audio recordings, which were made during operational technical arrangements in 2005 - 2006, where statements about bribe-taking by the above-mentioned persons, made by representatives of the regional funds and pharmaceutical companies, were recorded, and statements about the distribution of money received as bribes [were also recorded];

- documents discovered in the above-mentioned persons' offices;

- search records in the places of residence of the accused, including the applicant, as a result of which large sums of money were found;

- statements by a witness, Mr K., who confirmed his statements during a confrontation interview with Ms K.; documents given by [Mr K.] to the investigation authorities;

- initial statements by an accused, Mr T., who confirmed that he, [the applicant] and other employees of the Fund, had received money from Mr K. as bribes;

- statements by Mr Ku., who claimed that, while working in the Federal Fund as the head of the administrative service division, in 2006, on a number of occasions he had received various sums of money from Ms K. Mr Ku. confirmed his statements during a confrontation interview with Ms K. During the investigation Mr Ku. voluntarily handed over unlawfully obtained sums;

- statements by two of the accused, Ms M. and Ms F., who described the circumstances in which in 2005 - 06 they had received bribes from representatives of the regional funds and pharmaceutical companies, and who knew that part of the money received had been given to [the applicant]. In the course of the investigation Ms M. and Ms F. voluntarily handed over to the investigators unlawfully obtained money;

- statements by a number of representatives of the regional funds and pharmaceutical