Постановление Европейского суда по правам человека от 17.06.2010 «Дело Шуленков (shulenkov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SHULENKOV v. RUSSIA
(Application No. 38031/04)
JUDGMENT*
(Strasbourg, 17.VI.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 Shulenkov v. Russia,

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

Christos Rozakis, President,

Nina {Vajic}*,

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

Anatoly Kovler,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 27 May 2010,

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

PROCEDURE
1. The case originated in an application (No. 38031/04) 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 Aleksandr Nikolayevich Shulenkov ("the applicant"), on 15 July 2004.

2. The applicant, who had been granted legal aid, was represented by Ms O.V. Preobrazhenskaya from the International Protection Centre, a Moscow-based human-rights NGO, and Mr S. Obolentsev, a lawyer practising in Tula. The Russian Government ("the Government") were 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, in particular, that a period of his detention had not been authorised in accordance with the law and that his appeals against the orders for his detention had not been properly examined.

4. On 25 July 2007 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 of the Convention).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1974 and is now serving a prison sentence in the Tula Region.

6. On 10 April 2003 the police apprehended the applicant and two other individuals near a psychiatric hospital which had been robbed shortly before. The applicant was carrying a firearm and offered resistance to the arresting officers.

7. The applicant claimed that the police officers had ill-treated him and compelled him to make a confession. On 23 October 2003 a deputy Leninskiy District prosecutor of the Tula Region found the applicant's allegations of ill-treatment unsubstantiated and decided not to institute criminal proceedings. An appeal against that decision lay to a court of general jurisdiction; the applicant did not make use of that procedure.

8. On 12 April 2003 the Leninskiy District Court of the Tula Region remanded the applicant in custody for an initial two-month period.

9. On 16 April 2003 the applicant was charged with the armed robbery of the hospital. On 8 May and 7 June 2003 the applicant was additionally charged with five offences of theft and robbery committed in 2002 and 2003.

10. On 5 June, 5 August and 14 October 2003 the Uzlovaya Town Court extended the applicant's detention until 31 December 2003.

11. On 15 September 2003 the applicant was transferred to Moscow for an in-patient psychiatric examination at the State Scientific Centre for Forensic Psychiatric Examinations. On 26 December 2003 the examination was completed and the applicant was transferred to remand centre No. IZ-77/2 in Moscow. On 15 January 2004 he left IZ-77/2 and on the following day he returned to the remand centre in Tula.

12. In the meantime, on 30 December 2003 the Uzlovaya Town Court heard an application by the prosecutor for a further extension of the applicant's detention. On the previous day legal-aid counsel Mr S., who had been appointed to represent the applicant, had informed the Town Court that he would not be able to attend because of his involvement in another trial. Mr L. was appointed instead to represent the applicant.

13. Counsel for the applicant pleaded for his release, maintaining that there were no lawful grounds for granting a further extension. The prosecutor submitted that there were no reasons to vary the preventive measure.

14. The Town Court granted the application for an extension, finding as follows:

"...Taking into account the gravity of the charge concerning a premeditated particularly serious crime against property, information about the defendant's character, arguments by the State prosecutor to the effect that Mr Shulenkov may commit a more serious crime, flee from the investigation and justice and thereby interfere with the establishment of the truth, as well as the impossibility of finalising the pre-trial investigation within the remaining time because many investigative steps must be carried out in several areas of the region, the court finds that there are no grounds for revoking or varying the preventive measure in the form of remand in custody and that there exist justified grounds for extending the defendant's detention..."
15. On 30 January 2004 the applicant lodged an appeal against the extension order. He submitted that by 26 December 2003 the forensic examination had already been completed and that his presence at the hearing on 30 December could easily have been secured. He pointed out that the prosecutor's arguments concerning the risk of his fleeing or reoffending had not been corroborated with any facts. Furthermore, the court had not given consideration to the fact that he had to provide for his ailing parents and under-age daughter. On 19 March 2004 the Tula Regional Court dismissed the appeal. It found that the Town Court had correctly cited the gravity of the charges against the applicant as the ground for extending his detention. It also held that the examination of the applicant's detention in his absence had been compatible with Article 109 § 13 of the Code of Criminal Procedure because at that time the applicant had been held in a remand centre in Moscow "in connection with a forensic psychiatric examination" and because he had been represented by counsel, Mr L.

16. On 13 February 2004 the Uzlovaya Town Court granted a further extension of the applicant's detention until 10 April 2004. The applicant was represented at the hearing by counsel Mr L.

17. On 9 April 2004 the case against the applicant and two of his co-defendants was sent to the Uzlovaya Town Court for trial.

18. On 22 April 2004 the applicant complained to the governor of the remand centre and the Tula regional assistant prosecutor that, following the expiry of the last detention order on 10 April 2004, there was no legal basis for his continued detention. He did not receive a reply.

19. On 23 April 2004 the Uzlovaya Town Court gave a decision fixing the date of the preliminary hearing. The decision did not mention the question of the applicant's detention.

20. At the preliminary hearing on 13 May 2004 the Town Court determined that the bill of indictment was procedurally defective in that it contained incorrect information about the applicant's personal details. The court decided to return the case to the prosecutor for five days so that he could remedy these defects. It also rejected applications for release by the applicant and his co-defendants, noting that the preventive measure had been imposed lawfully and that there were no grounds for varying it.

21. The applicant lodged an appeal, which was dismissed on 9 June 2004 by the Tula Regional Court. Its decision stated that the grounds for holding the defendants in custody still obtained and that the Code of Criminal Procedure did not require that a court set a time-limit for detention when returning a case to a prosecutor.

22. On 17 May 2004 the prosecutor again sent the case for trial.

23. On 31 May 2004 the Uzlovaya Town Court set the opening date for the trial and held that all three defendants should remain in custody, without citing any grounds for the continuation of their detention on remand or setting a time-limit for it. On 7 June 2004 the applicant appealed against that decision. On 23 August and 20 October 2004 he asked the President of the Uzlovaya Town Court whether his appeal had been considered. He did not receive any response to his enquiry. According to the Government, his statement of appeal had been received by the Town Court on 11 June 2004 but, for reasons that remained unknown, it had not been forwarded to the Tula Regional Court for consideration.

24. On 4 November 2004 the Uzlovaya Town Court heard an application by the prosecutor for a further extension of the applicant's detention. The applicant and his co-defendants pleaded for release, maintaining that the initial six-month period of their detention pending trial had expired on 9 October 2004.

25. The Town Court held that the six-month period of detention should be calculated from the date when the case had been sent for trial again, that is, from 17 May 2004. It extended all the co-defendants' detention by three months, citing as the ground the complexity of the case and the large number of victims and witnesses who had not yet been examined. The applicant appealed. On 17 December 2004 the Tula Regional Court dismissed his appeal in a summary fashion, endorsing the reasoning of the Town Court.

26. On 10 February 2005 the Uzlovaya Town Court granted a further extension of the defendants' detention until 17 May 2005. On 15 April 2005 the Tula Regional Court upheld that decision on an appeal by the applicant.

27. On 19 July 2005 the Town Court convicted the defendants of four robberies and sentenced the applicant to nine years' imprisonment in a high-security institution.

28. In his statement of appeal the applicant complained, in particular, that his presumption of innocence had been compromised by publications in local newspapers which quoted high-ranking police officials.

29. The applicant submitted copies of three articles published in the regional press in 2004. The articles described the robbery of the hospital and two other robberies for which the applicant and his co-defendants were said to be responsible. The perpetrators were described as "jackals from Petelino", "robbers" or a "gang". The same photograph accompanied all three articles; the face and upper body of the person on the photograph were covered with a jacket.

30. On 25 January 2006 the Tula Regional Court dismissed the appeal. With regard to the newspaper publication, it held that "information in the mass media about the robbery committed in the regional psychiatric hospital [was] not a violation of the convict Shulenkov's rights".

II. Relevant domestic law
31. The Russian Constitution provides that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).

32. The Code of Criminal Procedure ("CCrP") provides that the term of detention "during the trial" (that is, after the case has been sent for trial) is calculated from the date on which the court received the file up to the date on which the judgment is given. The period of detention "during the trial" 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 of the CCrP).

33. An application for an extension of the defendant's detention may not be examined by a court in the defendant's absence, except in cases where the defendant has been admitted for an in-patient forensic psychiatric examination or where other circumstances making his presence impossible have been shown to exist by appropriate documents. Participation of the defendant's counsel is mandatory (Article 109 § 13 of the CCrP, as amended on 4 July 2003 by Law No. 92-FZ). If the defendant's presence is impossible, the court must give a separate decision setting out the reasons which made his presence impossible (Article 109 § 14).

THE LAW
I. Alleged violation of Article 5 § 1 of the Convention
34. The applicant complained that his detention had not been compatible with the requirements of the domestic law and Article 5 § 1 the Convention, the relevant part of which reads 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..."
A. Admissibility
35. The Court observes that starting from 12 April 2003, the applicant's detention was authorised and extended at regular intervals by the Leninskiy District Court and the Uzlovaya Town Court of the Tula Region. The last detention order issued by the Town Court expired on 10 April 2004. It does not appear that during that period there were deviations from the domestic procedure that were incompatible with the requirements of the Convention. It follows that this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

36. Following the expiry of the detention order on 10 April 2004, a new extension order setting a specific time-limit for the applicant's detention was not made until 4 November 2004. The applicant's position in the intervening period was arguably at variance with the requirements of the Convention. Accordingly, the Court considers that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

37. Finally, the Court notes that from 4 November 2004 to 19 July 2005, when the applicant was convicted, the applicant's detention was extended by successive decisions of the trial court. The trial court acted within its powers in making those decisions and there is nothing to suggest that they were invalid or unlawful under domestic law or incompatible with the Convention requirements. It follows that this part of the complaint is also manifestly