Published on 8 November 2021

THIRD SECTION

Application no. 55747/18 Oleg Aleksandrovich SMETANIN against Russia and 6 other applications (see list appended) communicated on 15 October 2021

STATEMENT OF FACTS

A list of the applicants, all of them Russian nationals, and the relevant details of the applications are set out in the Appendix.

1. The facts of the cases, as submitted by the applicants, may be summarised as follows.

2. On various dates the domestic courts ordered pre-trial detention in respect of the applicants. All of them argued that they should not be detained by reliance on Article 108 § 1.1 of the Criminal Procedure Code (“the CPC”). This provision prohibits the remanding in custody of persons suspected or accused of certain economic crimes, individual entrepreneurs or members of company management bodies in certain cases. It was amended on 2 August 2019 to more clearly define the categories of persons covered. The domestic courts dismissed the applicants’ arguments with no explanation or with vague reference that the crime imputed to a particular applicant was not committed in the sphere of his or her “business activities”.

3. For specific defects of the domestic judicial decisions in each case see the Appendix.

4. For the text of Article 108 § 1, Article 108 § 1.1 of the CPC as in force before 2 August 2019, see Rubtsov and Balayan v. Russia (nos. 33707/14 and 3762/15, §§ 15-17, 10 April 2018).

5. Article 108 § 1.1 of the CPC as amended by the Federal Law No. 315 ‑ FZ of 2 August 2019 stipulates that the preventive measure of detention on remand shall not be applied to the following categories of persons, provided that none of the [exceptional] circumstances indicated in [... Article 108] §§ 1-4 of the CPC is present:

(1) any person suspected or accused of having committed the crimes set down in Articles 159 §§ 5-7 [fraud], 171, 171.1 [illegal entrepreneurship], 171.3-172.3 [illegal banking], 173.1-174.1 [money laundering], 176 [illegal obtention of credit], 177 [failure to settle accounts payable], 178 [restriction of competition], 180 [illegal use of a trademark], 181 [breach of rules for the manufacture and use of state assay marks], 183 [illegal receipt and disclosure of information classified as a commercial, tax or banking secret], 185-185.4 [abusive issuance of securities] and 190-199.4 [non-return of cultural values to the Russian territory; marketing of wood sourced illegally; offences relating to trafficking of precious metals and stones; currency offences; custom offences; offences relating to bankruptcy; tax offences] of the Criminal Code of the Russian Federation;

(2) an individual entrepreneur suspected or accused of having committed the crimes set down in Articles 159 §§ 1-4 [fraud], 159.1-159.3, 159.5, 159.6 [various types of fraud], 160 [misappropriation of funds], 165 [causing of pecuniary damage by way of deception or abuse of trust] and 201 [abuse of powers] of the Criminal Code of the Russian Federation, if these offences have been committed in connection with the exercise of his business activities or management of assets used for business activities;

(3) a member of company management bodies suspected or accused of having committed the crimes set down in Articles 159 §§ 1-4, 159.1-159.3, 159.5, 159.6, 160, 165 and 201 of the Criminal Code of the Russian Federation, if these offences have been committed in connection with the exercise of his authority to manage the company or in connection with the exercise of business or economic activities by that company.

6. The Ruling no. 48 adopted by the Plenary of the Supreme Court on 15 November 2016 “On the Practice of the Application by the Courts of Legal Provisions Regulating Criminal Liability for Offences Committed in the Sphere of Business and Economic Activities” was amended accordingly on 11 June 2020. The Supreme Court instructed the domestic courts to follow certain guidelines when choosing a custodial preventive measure, namely:

(1) to check in cases involving an individual entrepreneur or a member of company management bodies whether the investigator’s application for custodial preventive measure contains specific elements confirming inapplicability of Article 108 § 1.1 of the CPC; in the absence of such information the application should be rejected (§ 6);

(2) to adjourn the hearing on choosing a custodial preventive measure upon the request by defence, if additional time is required to submit documents confirming the status of an individual entrepreneur or a member of company management bodies (§ 6);

(3) to reject the investigator’s application for custodial preventive measure if the crime was allegedly committed not only by a member of company management bodies, but also by his/her accomplice, provided that the conditions enumerated in Article 108 § 1.1 of the CPC were met (§ 8);

(4) to discuss the possibility of applying bail in each case, at the parties’ request or of the court’s own motion, and to provide specific reasons for the non-application of such preventive measure (§ 8.1).

COMPLAINTS

All applicants complain under Article 5 §§ 1 and 3 of the Convention about their allegedly unlawful placement in pre-trial detention and its excessive length. The applicants in cases nos. 2376/20 and 18099/21 also complain about excessive length of judicial review of their detention.

QUESTIONS TO THE PARTIES

1. Was each applicant’s pre-trial detention ordered and extended “in accordance with a procedure prescribed by law”, within the meaning of Article 5 § 1 of the Convention (see, for general principles, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 91-92, 15 December 2016)?

2. Has each applicant’s pre-trial detention been based on “relevant and sufficient” reasons and has it been compatible with the “reasonable time” requirement of Article 5 § 3 of the Convention (see Zherebin v. Russia , no. 51445/09, §§ 49-63, 24 March 2016, and Rubtsov and Balayan v. Russia , nos. 33707/14 and 3762/15, §§ 28-36, 10 April 2018)?

In particular, did the domestic courts provide reasons for the inapplicability of Article 108 § 1.1 of the CPC in each case, in line with the amendments introduced by the Federal Law No. 315-FZ of 2 August 2019 and the Supreme Court Ruling no. 48 of 15 November 2016 (as amended on 11 June 2020)?

3. Has each applicant complied with the exhaustion requirement under Article 35 § 1 of the Convention as regards their complaints about pre-trial detention?

In particular, did the cassation review procedure as amended by the Federal Law no. 15-FZ which entered into force on 24 February 2021, constitute an effective remedy in respect of the applicants’ complaints under Article 5 §§ 1 and 3 of the Convention (see Anikeyev and Yermakova v. Russia (dec.), nos. 1311/21 and 10219/21, §§ 26-27, 13 April 2021)?

4. In case no. 32220/20, has the applicant’s house arrest been justified by “relevant and sufficient” reasons and has it been compatible with the “reasonable time” requirement of Article 5 § 3 of the Convention (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 103-23, 5 July 2016)?

5. In cases nos. 2376/20 and 18099/21, did the length of the proceedings before the Moscow City Court, by which the applicants sought to challenge the lawfulness of their pre-trial detention comply with the “speed” requirement of Article 5 § 4 of the Convention (see Idalov v. Russia [GC], no. 5826/03, §§ 154-58, 22 May 2012)?

APPENDIX

No.

Application no.

Date of introduction

Applicant Year of Birth

Represented by

Period / length of detention / Article of the Criminal Code (crime)

Detention order / appeal / other decision (date and court)

Specific defects

Other complaints under well-established case-law

1.

55747/18

21/11/2018

Oleg Aleksandrovich SMETANIN 1965

Eduard Olegovich GERASKIN

20/11/2017 – pending

More than 3 years and 10 months

Art. 159 § 4

(large-scale fraud committed by a group of persons)

20/11/2017 Taganskiy District Court of Moscow (detention order)

04/12/2017 Moscow City Court (appeal against detention order)

25/10/2019 Meshchanskiy District Court of Moscow (last extension of detention)

03/12/2019 Moscow City Court (appeal)

- gravity of charges

- fragility of the reasons employed by the courts; - use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; - failure to examine the possibility of applying other measures of restraint; - failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; - failure to conduct the proceedings with due diligence during the period of detention; - economic crime (Art. 108 § 1.1 of the CPC was not applied because the applicant, a bankruptcy trustee, carried out his professional activity which does not fall under the definition of a “business activity”)

2.

2376/20

10/12/2019

Sergey Yevgenyevich ULANIN 1963

Karinna Akopovna MOSKALENKO

16/05/2019 - pending

More than 2 years and 4 months

Article 159 § 4 (large-scale fraud)

17/05/2019 Basmannyy District Court of Moscow (detention order)

10/06/2019

Moscow City Court (appeal against detention order)

17/09/2019 Basmannyy District Court of Moscow (last extension of detention)

15/10/2019 Moscow City Court (appeal)

- gravity of charges; - fragility of the reasons employed by the courts; - use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; - failure to examine the possibility of applying other measures of restraint; - failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; - failure to conduct the proceedings with due diligence during the period of detention;

- use of collective detention orders

Art. 5 § 4:

( 1) delayed examination of the appeal against the detention order (21 days);

(2) delayed examination of the appeal against the extension of detention of 18/06/2019 (19 days);

(3) delayed examination of the appeal against the decision of 17/09/2019 (25 days)

3.

11599/20

25/02/2020

Aleksey Vladimirovich POLUNIN 1976

Stanislav Konstantinovich AKIMOV

15/08/2019 - pending

More than 2 years and 1 month

Art. 160 § 4 (misappropriation), Art. 174.1 § 4a (money laundering by organised group)

16/08/2019 Klin Town Court of the Moscow Region (detention order)

29/08/2019 Moscow Regional Court (appeal against detention order)

22/04/2020 Klin Town Court of the Moscow Region (last extension of detention)

19/05/2020 Moscow Regional Court (appeal)

- fragility of the reasons employed by the courts; - use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; - failure to examine the possibility of applying other measures of restraint; - failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; - failure to conduct the proceedings with due diligence during the period of detention; - economic crime (the court stated that the applicant’s criminal activity does not belong to “business activities”; however, the applicant referred to Article 108 § 1.1 of the CPC according to which pre-trial detention cannot be applied to a director-general of the company in connection with the exercise of his authority to manage it)

4.

32220/20

10/04/2020

Tamara Nikolayevna SHILYAYEVA 1963

Svetlana Aleksandrovna TIMOFEYEVA

03/10/2019 - 30/03/2020

6 months (pre-trial detention),

More than 1 year and 5 months of house arrest

Art. 160 § 4

(large-scale misappropriation or embezzlement with abuse of office committed by a group of persons)

03/10/2019 Ustinovskiy District Court of Izhevsk (detention order)

17/10/2019 -Supreme Court of the Republic of Udmurtia (appeal against detention order)

31/01/2020 Industrialnyy District Court of Izhevsk (last extension of detention)

11/02/2020 Supreme Court of the Republic of Udmurtia (appeal)

30/03/2020

Industrialnyy District Court of Izhevsk (change to house arrest)

- gravity of charges; - fragility of the reasons employed by the courts; - use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; - failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; - failure to conduct the proceedings with due diligence during the period of detention/house arrest;

- economic crime (Art. 108 § 1.1 of the CPC was not applied with the blanket statement that the applicant’s criminal activity does not belong to “business activities” because it does not fall under Art. 2 of the Civil Code).

5.

48755/20

11/10/2020

Aleksandr Viktorovich POZDNYAKOV 1960

Roman Eduardovich KOBYLIN

25/10/2017 - pending

More than 3 years and 11 months

Art. 159 § 4 (large ‑ scale fraud, namely misappropriation of public funds)

25/10/2017 Basmannyy District Court of Moscow (detention order)

20/11/2017 Moscow City Court (appeal against detention order)

23/07/2020 Gagarinskiy District Court of Moscow (last extension of detention)

12/08/2020 Moscow City Court (appeal)

- fragility of the reasons employed by the courts;

- use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

- failure to examine the possibility of applying other measures of restraint;

- failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;

- failure to conduct the proceedings with due diligence during the period of detention;

- use of collective detention orders;

- economic crime (Art. 108 § 1.1 of the CPC was not applied with the blanket statement that the applicant’s criminal activity does not belong to “business activities” because it does not fall under Art. 2 of the Civil Code).

6.

9457/21

09/02/2021

Aleksandr Pavlovich KOROLEV 1977

Filipp Valeryevich BAGRYANSKIY

25/11/2020 – pending

More than 9 months

Art. 160 § 4

(large-scale misappropriation or embezzlement with abuse of position)

25/11/2020 Oktyabrskiy District Court of Vladimir (detention order)

11/12/2020 Vladimir Regional Court (appeal against detention order)

15/01/2021 Oktyabrskiy District Court of Vladimir (last extension of detention)

04/02/2021 Vladimir Regional Court (appeal)

- fragility of the reasons employed by the courts;

- use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

- failure to examine the possibility of applying other measures of restraint;

- failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;

- economic crime (the court stated that the applicant’s criminal activity does not belong to “business activities”; however, the applicant referred to Article 108 § 1.1 of the CPC according to which pre-trial detention cannot be applied to a director-general of the company in connection with the exercise of his authority to manage it)

7.

18099/21

29/03/2021

Andrey Gennadyevich BORDUNOV 1968

Aleksandr Valeryevich BARAKIN

16/11/2020 - pending

More than 10 months

Art. 159 § 4 (large ‑ scale fraud by a group of persons)

16/11/2020 Tverskoy District Court of Moscow (detention order)

14/12/2020 Moscow City Court (appeal against detention order)

28/12/2020 Tverskoy District Court of Moscow (last extension of detention)

15/02/2021 Moscow City Court (appeal)

- fragility of the reasons employed by the courts;

- use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;

- failure to examine the possibility of applying other measures of restraint;

- failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;

- economic crime (the court stated that the applicant’s criminal activity does not belong to “business activities”; however, the applicant referred to Article 108 § 1.1 of the CPC according to which pre-trial detention cannot be applied to a director-general of the company in connection with the exercise of his authority to manage it)

Art. 5 § 4:

(1) delayed examination of the appeal against the detention order (26 days)

(2) delayed examination of the appeal against the last extension of detention of 28/12/2020 (47 days)