ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 08.11.2005<ДЕЛО ХУДОЕРОВ (khudoyorov) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FOURTH SECTION
CASE OF KHUDOYOROV v. RUSSIA
(Application No. 6847/02)
JUDGMENT <*>
(Strasbourg, 8.XI.2005)
--------------------------------
<*> 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 Khudoyorov v. Russia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr {M. Pellonpaa} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Mr K. Traja,
Mr A. Kovler,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O"Boyle, Section Registrar,
Having deliberated in private on 11 October 2005,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (No. 6847/02) 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 Tajikistan, Mr Doniyor Toshpulotovich Khudoyorov, on 29 January 2002.
2. The applicant, who had been granted legal aid, was represented before the Court by Mr F. Bagryanskiy and Mr M. Ovchinnikov, lawyers practising in Vladimir, Mrs K. Moskalenko, a lawyer with the International Protection Centre in Moscow, and Mr W. Bowring, a London lawyer. The Russian Government ("the Government") were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that the conditions of his detention in facility No. OD-1/T-2 and conditions of transport to and from the courthouse had been incompatible with Article 3 of the Convention, that his pre-trial detention had been unlawful after 4 May 2001 and also excessively long, that his applications for release filed after 28 April 2001 had not been considered "speedily", if at all, and that the length of the criminal proceedings had been excessive.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. On 13 February 2004 the Section President decided to grant priority to the application under Rule 41 of the Rules of Court.
6. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).
7. By a decision of 22 February 2005, the Court declared the application partly admissible.
8. The Government, but not the applicant, filed observations on the merits (Rule 59 § 1).
9. The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).
THE FACTS
I. The circumstances of the case
10. The applicant was born in 1965. On 17 August 1998 he arrived in Russia from Tajikistan. He stayed in Vladimir at his cousin"s flat.
A. The applicant"s arrest and the search of the flat
11. On 22 January 1999 the applicant was arrested on suspicion of the unlawful purchase and possession of drugs. A search was carried out in the flat where he was staying.
B. The applicant"s detention pending investigation
12. On 30 January 1999 the applicant was charged under Article 228 § 1 of the Criminal Code with the unlawful purchase and possession of 3 grams of hashish. He pleaded not guilty and indicated that he did not need an interpreter because he had studied in Leningrad.
13. On 12 March and 5 April 1999 the applicant"s detention was extended until 11 July 1999.
14. On 4 June 1999 the Leninskiy District Court of Vladimir refused the applicant"s request for release on bail. It found that the applicant"s detention had been extended in accordance with the law and that no grounds for releasing him could be established. The applicant did not appeal to the Regional Court.
15. On 30 June and 2 September 1999 the applicant"s detention was extended until 21 December 1999.
16. On 2 December 1999 the acting Prosecutor General approved the extension of the applicant"s detention until 21 June 2000. The applicant appealed to the Leninskiy District Court, which on 28 December 1999 dismissed the appeal, finding that the applicant had been charged with an particularly serious criminal offence and had resided in Vladimir only temporarily, his permanent residence being in Dushanbe, Tajikistan, so that there was good reason to suspect that he would abscond if released. The applicant did not appeal against that decision to the Regional Court.
C. First remittal of the case for additional investigation
17. On 21 June 2000 the supervising prosecutor approved the bill of indictment and the case against the applicant and twenty co-defendants was sent to the Vladimir Regional Court for trial.
18. On 23 June and 17 July 2000 the applicant requested the Vladimir Regional Court to review the lawfulness of his detention on remand.
19. On 18 July 2000 the Vladimir Regional Court ordered the case to be remitted for an additional investigation because the bill of indictment had not been translated into the Tajik language, even though seven of the defendants were Tajik. The court held that the applicant and his co-defendants should remain in custody.
20. On 24 July 2000 the prosecution appealed against the decision but subsequently withdrew their appeal. On 30 August 2000 the case was returned to the Vladimir Regional Court for examination on the merits.
D. Second remittal of the case for additional investigation
1. Reinstatement of the decision of 18 July 2000
21. On 23 November 2000 the Vladimir Regional Court ordered the case to be remitted for an additional investigation because the rights of some of the defendants had been unlawfully restricted. The prosecution appealed.
22. On 28 February 2001 the Supreme Court of the Russian Federation quashed the decision of 23 November 2000. It found that, after the case had been remitted for an additional investigation on 18 July 2000, the prosecution had not remedied the defects identified by the Regional Court. In particular, the prosecution had not arranged for translation of the bill of indictment or checked that the interpreter had the requisite skills. In view of these procedural defects, the Supreme Court held that all the subsequent judicial decisions had been unlawful and remitted the case to the Regional Court for implementation of the decision of 18 July 2000.
2. Additional investigation
(a) Extension of the applicant"s detention for one month (until 4 May 2001)
23. On 4 April 2001 the case was remitted to the prosecutor of the Vladimir Region for an additional investigation. On the same day a deputy prosecutor of the Vladimir Region extended the applicant"s detention on remand by one month, until 4 May 2001.
(b) Extension of the applicant"s detention for three months (until 4 September 2001)
24. On 19 April 2001 the prosecutor of the Vladimir Region applied to the Vladimir Regional Court for an order extending the applicant"s detention. The applicant lodged objections in which he alleged, inter alia, that the prosecution had thus far failed to perform any additional investigation.
25. On 28 April 2001 the Vladimir Regional Court established that the bill of indictment had been translated into Tajik and that on 18 April 2001 the defendants and their lawyers had begun their examination of the case file. Noting the gravity of the charges against the applicant, his Tajik nationality and absence of a permanent residence in Vladimir, the Regional Court further remanded him in custody until 4 September 2001.
26. On 4 and 17 May 2001 the applicant appealed against the decision of the Vladimir Regional Court.
(c) Quashing of the decision to extend the applicant"s detention until 4 September 2001
27. On 8 August 2001 the Supreme Court established that one of the applicant"s co-defendants had not been provided with an interpreter into Uzbek and that the applicant and other co-defendants had had no access to the materials examined by the Regional Court. It held as follows:
"The defects of the court hearing described above and the curtailing of the defendants" statutory rights... are substantial violations of the rules of criminal procedure, which could have affected the judge"s conclusions; the decision [of 28 April 2001] must therefore be quashed and the materials of the case relating to the extension of the defendants" pre-trial detention must be referred for a new judicial examination. During the new examination of the prosecutor"s request, the above defects shall be remedied... and the arguments by the defendants and their counsel, including those concerning the lawfulness of their detention, shall be reviewed... The preventive measure [imposed on, in particular, the applicant] shall remain unchanged".
By an interim decision of the same date, the Supreme Court refused the applicant leave to appear at the appeal hearing.
(d) Second examination of the request for an extension of the applicant"s detention until 4 September 2001
28. On 11 September and 30 November 2001 the Vladimir Regional Court adjourned hearings in order to afford the defendants additional time in which to read the case-file.
29. On 27 February 2002 the Vladimir Regional Court upheld a challenge by the applicant against the presiding judge.
30. On 11 and 13 March, 12 April, 17 and 18 June 2002 hearings were adjourned because of the absence of several lawyers, including the applicant"s counsel.
31. On 15 August 2002 the Vladimir Regional Court again granted the prosecutor"s request (of 19 April 2001) for an extension of the defendants" detention on remand until 4 September 2001. It found that it was necessary for the applicant to remain in custody because he was a national of Tajikistan, was not registered as resident in Vladimir, and had been charged with a serious criminal offence. The court also referred to certain "conclusions" contained in the prosecutor"s application to the effect that the applicant might abscond or obstruct justice. The content of these "conclusions" was not disclosed.
32. On 23 September 2002 the applicant lodged an appeal against the decision of the Vladimir Regional Court. He claimed that the contested decision was "unlawful and unconstitutional" and requested leave to appear in person at the appeal hearing.
33. On 23 January 2003 the Supreme Court upheld the decision of 15 August 2002, finding as follows:
"The judge came to a well-justified conclusion that the defendants... could not be [released pending trial]. The judge had regard to the fact that these persons were charged with serious and particularly serious criminal offences, he considered the information on their character and all the circumstances to which the prosecutor had referred in support of his application...
The fact that the above-mentioned decision on the prosecutor"s application was [only] made after the defendants had spent that length of time in custody... is not a ground for quashing the decision of 15 August 2002 because the first judicial decision on this matter was quashed in accordance with the law and the prosecutor"s application of 19 April 2001 was remitted for a new examination. The subsequent progress of the criminal case is, under these circumstances, of no relevance to a decision on the prosecutor"s application."
By an interim decision of the same date, the Supreme Court refused the applicant"s request for leave to appear because the defendants" arguments were clearly set out in their grounds of appeal and their lawyers were present at the hearing while the prosecutor was not.
E. Third remittal of the case for additional investigation
1. Preparation for the trial
34. Meanwhile, on 4 September 2001 the additional investigation was completed and the case sent to the Vladimir Regional Court. On or about that date the applicant asked the court to order his release pending the trial.
35. On 9 January 2002 the Vladimir Regional Court fixed the first hearing for 5 February 2002 and held that the applicant should remain in custody pending trial:
"[The court] did not establish any grounds... to amend or revoke the preventive measure imposed on the accused given the gravity of the offence with which the defendants are charged. Furthermore, the fact that the court decision extending the detention on remand of several defendants in order to afford them [time] to examine the case materials was quashed on appeal is of no legal significance. [In its decision of 8 August 2001] the Supreme Court did not revoke the preventive measure, the case was referred to the [trial] court without delay and no other grounds for amending the preventive measure were established."
36. On 11 February 2002 the applicant lodged an appeal against the decision. He complained, in particular, that his detention was unlawful because it had significantly exceeded the maximum eighteen-month period permitted by law, that the conditions in which he was detained were poor and that he had been ill-treated by police officers, both at the time of his arrest and subsequently. He alleged that his notice of appeal had never been dispatched to the Supreme Court.
37. On 5 February 2002 the hearing was adjourned until 26 February because three defendants had failed to appear. On 15 February 2002 the applicant prepared an appeal against the decision to adjourn the hearing; in the notice of appeal, he also repeated the points he had raised in his appeal of 11 February. He again stated that his notice of appeal had not been sent to the Supreme Court.
2. Decision to remit the case for additional investigation
38. On 13 March 2002 the Vladimir Regional Court established that the case was not ready for consideration on the merits because of a series of procedural defects: in particular, several defendants had not had sufficient time to study the case file, one defendant had not been provided with interpretation facilities into Uzbek, and the applicant had not been informed in good time of the expert examinations. The court remitted the case for an additional investigation and remanded the defendants in custody "in the light of the gravity and dangerous nature of the offences".
39.

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