ECHR: Moskovets v. Russia

On 23 April 2009, the European Court of Human Rights published its decision on the case Moskovets v. Russia (Application no. 14370/03). The case repeats many caveats already established in the contemporary judgment, Gubkin v. Russia. The Court has found a breach on the lawfulness of detention because of lack of motivation in the judicial order:

53.  The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. However, the “lawfulness” of detention under domestic law is not always the decisive element. The Court must in addition be satisfied that detention during the period under consideration was compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see Khudoyorov, cited above, § 124, and Fedotov v. Russia, no. 5140/02, § 74, 25 October 2005).

54.  The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).


64.  The Court considers that the decision of the St Petersburg City Court of 11 March 2003 did not constitute a “lawful” basis for the applicant’s detention from 2 December to 30 December 2002. The Government did not indicate any domestic legal provision that permitted a decision to be taken authorising a period of detention retrospectively. Furthermore, the Court reiterates that any ex post facto authorisation of detention on remand is incompatible with the “right to security of person” as it is necessarily tainted with arbitrariness (see Khudoyorov, cited above, § 142; Vladimir Solovyev, cited above, § 99; and Shukhardin v. Russia, no. 65734/01, § 69, 28 June 2007).

65.  The Court therefore considers that there was a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 2 December to 30 December 2002.

Going on, the Court has also established a violation of article 5(3) on length of detention on remand:

83.  The Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). The Court further reiterates that any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Belevitskiy, cited above, § 102, with further references).

84.  The Court further notes that with the exception of the above-mentioned extension order of 28 November 2003 all decisions extending the applicant’s detention in the period from 1 July 2002 to 30 April 2004 were stereotypically worded and in summary form. Besides, they concerned six persons without describing in detail their individual situations.

85.  The Court has already found that the practice of issuing collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee is incompatible in itself with Article 5 § 3 of the Convention (see Aleksey Makarov v. Russia, no. 3223/07, § 53, 12 June 2008; Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006). By extending the applicant’s detention by means of collective detention orders the domestic authorities had no proper regard to his individual circumstances.

86.  The Court has frequently found a violation of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Belevitskiy, cited above, §§ 99 et seq.; Khudobin v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-… (extracts); Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1 June 2006; Dolgova, cited above, §§ 38 et seq.; Khudoyorov, cited above, §§ 172 et seq., ECHR 2005-X (extracts); Rokhlina, cited above, §§ 63 et seq.; Panchenko, cited above, §§ 91 et seq.; and Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).

87.  Having regard to the above, the Court considers that by failing to address specific facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify its more than four-year duration. In these circumstances it would not be necessary to examine under Article 5 § 3 of the Convention whether the proceedings were conducted with “special diligence”.

88.  There has therefore been a violation of Article 5 § 3 of the Convention.

The Court found a violation of Article 6(1) as for what concerns the appointment of lay judges as a requirement for a competent tribunal established by law:

97.  The Court reiterates that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). The Court is therefore requested to examine allegations such as those made in the present case concerning a breach of the domestic rules for appointment of judicial officers. The fact that the allegation in the present case concerned lay judges does not make it any less important as, pursuant to Article 15 of the Code of Criminal Procedure then in force, in their judicial capacity lay judges enjoyed the same rights as professional judges (see paragraph 34 above).

98.  The Court observes that the parties’ dispute focuses on the extent to which the participation of lay judges Ms D. and Mr S. in the applicant’s trial complied with the domestic legislation, notably the Lay Judges Act.


100.  The Court reiterates that it has found a violation of Article 6 § 1 of the Convention in other Russian cases in which it had been established that the selection of lay judges had been conducted contrary to the requirements of the Lay Judges Act (see Posokhov v. Russia, no. 63486/00, §§ 40-44, ECHR 2003-IV; Fedotova v. Russia, no. 73225/05, §§ 38-44, 13 April 2006; Shabanov and Tren v. Russia, no. 5433/02, §§ 28-32, 14 December 2006; and, most recently, Barashkova v. Russia, no. 26716/03, §§ 30-34, 29 April 2008). There is no reason to reach a different conclusion in the present case, and, therefore, no need to examine further the second aspect of the applicant’s complaint concerning the judicial capacity of the lay judges Ms D. and Mr S. after 1 January 2004.

101.  The Court concludes, therefore, that the St Petersburg City Court which convicted the applicant on 30 April 2004 cannot be regarded as a “tribunal established by law” and that there has been a violation of Article 6 § 1 of the Convention on that account.

Finally, the Court found a violation of Article 6(1) for excessive length of judicial proceedings:

111.  On the other hand, several manifest delays in the proceedings were caused by the conduct of the domestic authorities. The Court observes, in particular, that on 25 April 2001 the City Court referred the case for an additional investigation owing to serious breaches of the procedure. The resulting delay of eight months (from 25 April 2001 to 25 December 2001) could have been avoided had the relevant domestic authorities complied more strictly with the rules set out in the domestic law.

112.  After the case was submitted to the City Court on 25 December 2001, the first hearing was scheduled for 5 August 2002. The Government explained the resulting seven months’ delay by the heavy workload of the judge and the necessity to select the lay judges. In this respect the Court recalls that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision within a reasonable time (see Löffler v. Austria, no. 30546/96, § 21, 3 October 2000, and Bakhitov v. Russia, no. 4026/03, § 29, 4 December 2008). The Court also deplores the fact that although the domestic authorities were made aware of the applicant’s preference as to the composition of the court as early as November 2001, the selection of the lay judges for the hearing of the applicant’s case was conducted a year later, on 11 November 2002.

113.  The Court further observes that on 5 August 2002 the proceedings were suspended in view of the necessity to search for one of the applicant’s co-defendants. Four months later, on 15 December 2002 the proceedings were resumed despite the fact that the search had yielded no results. It appears that nothing precluded the domestic court from starting the trial four months earlier in the absence of the applicant’s co-defendant, and the delay in question should, therefore, be also attributed to the domestic authorities. Another delay, amounting to five months, for which the domestic authorities can be held responsible, occurred from 30 April 2004 when the trial court pronounced the judgment until the appeal hearing of 30 September 2004.

114.  Having regard to the foregoing, and especially to what was at stake for the applicant, given that he had been held in detention throughout the whole period while the proceedings were pending, the Court considers that the length of the proceedings in the present case did not satisfy the “reasonable time” requirement.

115.  There has accordingly been a breach of Article 6 § 1 of the Convention.

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