Постановление Европейского суда по правам человека от 24.06.2010 «Дело Велиев (veliyev) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF VELIYEV v. RUSSIA
(Application No. 24202/05)
JUDGMENT*
(Strasbourg, 24.VI.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 Veliyev 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,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Andre} Wampach, Deputy Section Registrar,

Having deliberated in private on 3 June 2010,

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

PROCEDURE
1. The case originated in an application (No. 24202/05) 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 national of the Republic of Azerbaijan, Mr Tudzhar Ali ogly Veliyev on 27 June 2005.

2. The applicant was represented by Mr F.V. Bagryanskiy, Mr M.V. Ovchinnikov and Mr A.V. Mikhaylov, lawyers practising in the town of Vladimir. 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, and subsequently by their Representative, Mr G. Matyushkin.

3. The applicant alleged, in particular, that the conditions of his detention during criminal proceedings had been appalling, that his detention on remand had been unlawful, too lengthy and otherwise irregular, and that the criminal proceedings against him had been too lengthy.

4. On 15 January 2008 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 President made a decision on priority treatment of the application (Rule 41 of the Rules of Court).

5. The Government of the Republic of Azerbaijan, having been informed by the Registrar of the right to intervene (Article 36 § 1 of the Convention), did not avail themselves of this right.

6. The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
7. The applicant was born in 1964 and previously resided in the town of Baku, in the Republic of Azerbaijan.

8. He is currently serving a sentence of imprisonment in penitentiary establishment IK-4 in the town of Vyazniki of the Vladimir Region, Russia.

A. Criminal proceedings in respect of the applicant
1. The applicant's arrest and detention
order of 28 February 2004
9. On 26 February 2004 the applicant was arrested on suspicion of having taken part in multiple episodes of organised armed robbery, along with eight other people.

10. Since that date he has remained in custody.

11. On 28 February 2004 the Frunzenskiy District Court of the town of Vladimir ("the District Court"), having heard submissions from a prosecutor and from the applicant in person, authorised the applicant's arrest and pre-trial detention.

12. The court examined the materials of the case file and noted that the applicant was suspected of having committed a series of particularly serious crimes, had no fixed place of residence, work or registration in Russia, that he was a foreign national, that there were grounds to believe that being at large the applicant might flee from justice or continue his criminal activity, and that the application of less drastic preventive measures was generally not justified.

13. It does not appear that the applicant brought appeal proceedings in respect of this detention order.

14. On 2 March 2004 the charges were brought against the applicant on suspicion of his involvement in multiple episodes of organised armed robbery.

15. Subsequently, on an unspecified date, the applicant's case was merged with other cases which concerned the applicant's criminal activity in the Vladimir, Ivanovo and Saratov Regions.

2. Extension of detention until 6 July 2004
16. By order of 22 April 2004 the District Court, having heard submissions from the applicant, his counsel and the prosecutor, extended the applicant's detention until 6 July 2004, for a total period of 4 months and 10 days.

17. The court mentioned the same reasons as in the order of 28 February 2004, adding that the applicant could put pressure on other participants in the criminal case, attempt to eliminate evidence and otherwise impede the proceedings.

18. The decision also noted the need to finalise investigative actions in the Vladimir, Ivanovo and Saratov Regions. The prosecutor estimated that these actions could take at least two months and ten days. The court examined the materials in the case file as collected so far and agreed with the investigator's reasons.

19. It does not appear that the applicant brought appeal proceedings in respect of this decision.

3. Extension of detention until 6 September 2004
20. On 6 July 2004 the District Court extended the pre-trial detention until 6 September 2004, for a total period of 6 months and 10 days. The court noted that the applicant had been accused of a serious crime, that he was unemployed, and that from the case-file materials it followed that further investigative actions were required.

21. According to the court, there was reason to believe that being at large the applicant might flee, continue his criminal activity or impede the criminal proceedings.

22. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.

23. On 25 August 2004 further charges were brought against the applicant on account of other alleged criminal activity on his part.

4. Extension of detention until 6 November 2004
24. On 6 September 2004 the applicant's pre-trial detention was further extended by the District Court, this time until 6 November 2004, for a total period of 8 months. The court gave reasons essentially similar to those mentioned in its previous decisions.

25. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.

5. Extension of detention until 6 December 2004
26. In a decision dated 22 October 2004 the District Court again extended the applicant's pre-trial detention, this time until 6 December 2004, referring to the same reasons as in its previous decisions. The total period of the applicant's authorised detention now amounted to 9 months and 10 days.

27. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.

6. Extension of detention until 6 February 2005
28. On 6 December 2004 the District Court extended the pre-trial detention until 6 February 2005, for a total period of 11 months and 10 days. The court justified the decision with reference to essentially the same reasons as previously.

29. It is not clear whether the judge heard submissions from the applicant or his counsel in person or whether any appeal proceedings were brought in respect of this extension.

7. The first bill of indictment and decision
of 27 January 2005
30. It appears that on 11 January 2005 the investigation in respect of nine co-accused in the case, including the applicant, was over and the prosecution authority sent the bill of indictment, along with the case file, to the trial court for examination on the merits.

31. On 27 January 2005 the Vladimir Regional Court ("the Regional Court") carried out a preliminary examination of the case and, having detected various shortcomings and defects in the investigation, decided to return the file to the prosecutor.

32. Those defects included the following: failure to notify the accused of their rights in relation to the jury trial procedure; failure to decide whether there was any need to split the case in view of the fact that some co-accused had opted for a jury trial procedure; and lastly certain inconsistencies and shortcoming in the factual conclusions made by the prosecution in the bill of indictment.

33. The court noted that all accused in the case should remain in detention as there were no reasons to release them. The court did not set any specific time-limit for their detention. The decision referred to all accused collectively, without analysing their circumstances individually. In taking this decision the court relied on Article 237 of the Code of Criminal Procedure.

34. Upon expiration of the ten-day time-limit for appeal on 3 February 2005, the court sent the case file back to the prosecutor's office.

8. The applicant's request for release
dated 10 March 2005, the second bill of indictment
and the decision of 28 March 2005 to stay the proceedings
35. On 4 March 2005, having introduced necessary corrections and amendments, the prosecution sent the corrected case file to the trial court for examination on the merits.

36. On an unspecified date, the trial court decided to hold a preliminary hearing in the case on 28 March 2005. It does not appear that any formal decision was taken as regards the applicant's detention on remand.

37. On 10 March 2005 the applicant, through his lawyer, applied for release. The request referred to the alleged lack of any lawful basis for his continued detention as of 6 February 2005.

38. This request was examined and rejected by the Regional Court at the preliminary hearing on 28 March 2005. The court decided that the investigation should be suspended because one of the accused, Mr D.G. K., was seriously ill, while one of the others, Mr A.A. G., could not take part in the proceedings as he was being tried in a different set of proceedings for a different offence. The court noted that it was impossible to try the applicant separately from the other co-accused and that the six month time-limit, as set out in Article 255 § 3 of the Code of Criminal Procedure, was not breached.

39. In respect of the lawfulness of the applicant's detention on remand, the court noted that until 11 January 2005, the date on which the case had been sent to the trial court for examination on the merits, the applicant had been regarded as "detained pending investigation" and that after that date he was "detained pending trial". In view of the trial court's decision of 27 January 2005 remitting the case to the prosecution as of 3 February 2005, the applicant was again detained "pending investigation". On 4 March 2005 the case was again sent to the trial court and the applicant detained "pending trial". The court then gave the following reasoning:

"Under Part 2 of Article 255 of the Code of Criminal Procedure, if a preventive measure in the form of detention on remand is chosen..., then the term of the detention counted from the date on which the case reached the court and until the verdict has been given may not exceed six months, except for cases explicitly mentioned in Part 3 of the above-mentioned Article. The norm in question means that as of the date on which the case reached the court the accused is counted as being detained pending trial.

Under Part 3 of Article 255 of the Code of Criminal Procedure, the court in charge of the case may, upon expiry of the above-mentioned six months, extend the term. At the same time, such an extension is possible only in cases involving serious or particularly serious offences, and each time for a term not exceeding three months.

At the time when the case reached the court that is on 4 March 2005 [the applicant] was counted as being detained pending trial. The six-month time-limit mentioned in Part 3 of Article 255 has not expired to date. The court finds no violation of the domestic law in this respect."
40. The decision of 28 March 2005 was contested by the applicant, through his lawyer, before the Supreme Court on 7 April 2005.

41. On 20 June 2005, that is seventy-four days thereafter, the Supreme Court of Russia ("the Supreme Court") examined and rejected the complaint. The decision referred to all the accused collectively, without analysing their circumstances individually. In its relevant part, the court ruling stated as follows:

"[the applicant and eight others] are accused by the investigation of commission of crimes, including serious and very serious offences.

The circumstances which served as a basis for the preventive measure in the form of detention did not change. Having noted its reasons in the decision, the court came to the conclusion that the need for the preventive measure in respect of [the applicant and other co-accused] had not ceased to exist, and that there had been no reason to release him or to choose a milder preventive measure, which is why the court had taken the decision...

This court has no reason to differ."
9. Decision dated 20 June 2005 to resume
criminal proceedings
42. On 20 June 2005 the Regional Court resumed the proceedings in the case and decided to hold a preliminary hearing on 11 July 2005.

10. Extension of detention for three months
until 18 October 2005
43. In view of the fact that the six-month time-limit set out in Part 3 of Article 255 of the Code was about to expire, on 11 July 2005 the Regional Court extended the applicant's detention for three months until 18 October 2005. The court gave the same reasons as previously.

44. The decision of 11 July 2005 was contested by the applicant through his lawyer before the Supreme Court on 18 July 2005.

45. On 15 September 2005, that is two months and five days later, the Supreme Court examined this appeal and decided to uphold the decision of 11 July 2005. The court essentially relied on the fact that the circumstances relevant in the applicant's situation had not changed and that the proceedings could not be finalised "for objective reasons". Again, the court referred to all the accused collectively, without analysing their circumstances individually.

11. Decision of 19 July 2005 to remit the case
for further investigation
46.