Communicated on 29 September 2016

THIRD SECTION

Application no. 1691/09 Maksim Igorevich VASILYEV against Russia lodged on 12 December 2008

STATEMENT OF FACTS

1. The applicant, Mr Maksim Igorevich Vasilyev , is a Russian national who was born in 1968 and is detained in Anokhino . He is represented before the Court by Mr V.V. Shukhardin , a lawyer practising in Moscow.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s pre-trial detention

3. On 12 July 2005 criminal proceedings on a charge of large-scale fraud were instituted against “unidentified persons”.

4. On 26 December 2005 the charge of attempted large-scale fraud was severed into separate proceedings.

5. On 12 April 2007 these two cases were consolidated.

6. On 21 May 2007 the applicant was summoned to appear before the investigator and was then arrested on suspicion of large-scale fraud and attempted large-scale fraud .

7. On the same day the Tverskoy District Court of Moscow decided to remand the applicant in custody. The court held as follows:

“... Substantiating the request [for the application of a custodial measure], the investigator indicated that [the applicant] might try to flee from the pre-trial investigation and the court, reoffend, or otherwise obstruct the administration of justice, as well as tampering with witnesses or destroy evidence, since he is suspected of crimes punishable by more than two years of imprisonment. Moreover, in his request the investigator mentioned that Mr Vasilyev was concealing his whereabouts from the law-enforcement authorities and repeatedly and without good reason had not appeared upon being summoned to take part in investigative activities. Furthermore, Mr Vasilyev had been using forged documents identifying him as a person involved in the work of a regional public charity named Soglasiye i Yedinstvo ; this had proved to be a front organisation. Having fraudulently obtained a second passport, Mr Vasilyev has more than once used this forged document, as well as his original passport, to travel abroad.

At the court hearing the investigator and the prosecutor upheld the request [for the application of a custodial measure] ... and stated that the applicant ’ s actual place of residence has not been located – a summons sent to the applicant ’ s domicile consistently remained undelivered.

... The court takes note of the ... arguments advanced by the defence but finds them insufficient to justify a refusal of the investigator ’ s request. ... Having regard to the circumstances and nature of the offences ... and to the fact that Mr Vasilyev is suspected of having committed those offences in association with “unidentified persons”, the court comes to the conclusion that the suspect ... might try to flee from the pre-trial investigation and the court or otherwise obstruct the administration of justice, and that therefore there is no reason to impose on [the applicant] any other, more lenient, preventive measure than that of detention on remand.”

8. On 23 May 2007 the applicant was charged on two counts of large ‑ scale fraud .

9. Following an appeal by the applicant, on 27 June 2007 the Moscow City Court upheld the detention order of 21 May 2007.

10. On 17 July and 18 October 2007, and 18 January, 19 March, and 16 April 2008, the Tverskoy District Court of Moscow extended the applicant ’ s detention, ultimately until 21 May 2008 – that is, for a total of twelve months. On each occasion the court held that the grounds for holding the applicant in custody were still valid.

11. The applicant only lodged one appeal (against the extension order of 17 July 2007); on 8 August 2007 that appeal was upheld by the Moscow City Court.

12. Meanwhile the investigation was completed on 29 June 2007; the applicant, his two co-accused , their legal counsel and other parties to the case were then granted access to the case file without any time-limit being imposed. On a later date the Tverskoy District Court of Moscow set a time ‑ limit of 23 April 2008 for studying the case file.

13. On 23 April 2008 a record was drawn up certifying that the applicant and his seven-strong legal team had finished studying the case file.

14. On 13 May 2008 the investigator lodged an application with the Moscow City Court for an extension of the applicant ’ s detention until 20 June 2008 (making a total of twelve months and thirty days). In support of this request he stated that because one of the applicant ’ s co-accused had already pleaded guilty before any trial, the charges against that co-accused had been severed into separate proceedings falling under the jurisdiction of another court. Additional time was needed for making a copy of the case file (consisting of sixty-three volumes) for that court.

15. On 16 May 2008 the Moscow City Court extended the applicant ’ s detention until 20 June 2008. It relied on Article 109 § 7 of the Code of Criminal Procedure of the Russian Federation which allows for the extension of pre-trial detention in the event that the defendant needs more time to study the case file.

16. On 17 June 2008 the Supreme Court of Russia upheld the above decision on appeal. The judgment provided no response to the defence ’ s argument that the extension was in excess of the maximum statutory detention period of twelve months and hence unlawful.

17. On 30 June 2008 the case was sent for trial.

18. On 21 April 2009 the Basmanniy District Court of Moscow convicted the applicant on two counts of large-scale fraud and sentenced him to eight years ’ imprisonment and a fine of 150,000 Russian roubles.

19. On 20 August 2009 the Moscow City Court upheld the applicant ’ s conviction on appeal.

20. The overall length of the applicant ’ s pre-trial detention amounted to one year, eleven months and one day.

2. Examination of witnesses during t he trial

21. Among other evidence, the applicant ’ s conviction was based on statements which had been made at the pre ‑ trial stage of the proceedings by prosecution witnesses Mr S., Mr Kh ., Mr P., Mr M.G., Mr M.A., Ms Ch.Ye ., Ms Ch.O ., Ms A., Mr B. and Ms M.

22. The trial court allowed those pre-trial statements to be read out and admitted them as evidence without examining the witnesses during the trial. In support of this decision the court held as follows:

“... All the witnesses in issue have been duly summoned [to appear on] various dates, but did not appear [in response to those] summons; warrants compelling the appearances of these witnesses were issued, [but the subjects of those warrants] informed the court in writing that they could not appear .

... Under Article 281 § 2 (4) of the Code of Criminal Procedure of the Russian Federation the court finds the reasons for non-appearance by the witnesses to be exceptional. The court has exhausted all the available means of summoning the witnesses ...”

23. The applicant appealed against his conviction, arguing, inter alia , that it had been unfair owing to the court ’ s failure to hear the witnesses.

24. Upholding the conviction, the appellate court reiterated that all the available means of summoning the witnesses had been exhausted.

B. Relevant domestic law and practice

1. The Constitution of the Russian Federation

25. Article 22 of the Constitution provides that everyone shall have the right to freedom and inviolability of person.

2. The Criminal Code of the Russian Federation

26. The Criminal Code prescribes a maximum penalty of between five and ten years ’ imprisonment for serious offences and a maximum penalty of more than ten years ’ imprisonment for particularly serious offences.

27. Large-scale fraud may be punished by five to ten years ’ imprisonment (Article 159 § 4 of the Code).

3. The Code of Criminal Procedure of the Russian Federation

(a) Preventive measures in criminal proceedings

28. “Preventive measures” or “measures of restraint” ( меры пресечения ) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear [before investigators or a court] ( обязательство о явке ) (Article 112).

29. When deciding on a preventive measure, the relevant authority is required to consider whether there are “sufficient grounds for believing” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97). It must also take into account the gravity of the charge; information regarding the accused ’ s character; his or her profession, age, state of health, and family status; and other circumstances (Article 99).

30. Detention may be ordered by a court if the charge carries a sentence of at least two years ’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

(b) Time-limits for detention “pending investigation”

( i ) Initial detention and its extensions

31. After arrest a suspect is placed in custody “pending investigation”. The period of detention “pending investigation” must not exceed two months (Article 109 § 1).

32. If the investigation cannot be completed within the two-month time ‑ limit, and if there are no grounds for lifting or altering the preventive measure, the total period of detention pending investigation may be extended up to six months. Further extensions up to a total of twelve months are possible only in relation to persons accused of serious or particularly serious criminal offences, and only if the case in question is particularly complex and if there are ground s justifying detention (Article 109 § 2).

33. In exceptional circumstances detention pending investigation may be extended up to a total of eighteen months in respect of detainees charged with a particularly serious criminal offence (Article 109 § 3).

34. The extension of detention beyond eighteen months is prohibited and the detainee must be released immediately, unless a request by the prosecution for an extension for the purpose of studying the case has been granted by a court in accordance with Article 109 § 8 of the Code of Criminal Procedure (Article 109 § 4).

(ii) Supplementary extension for the purpose of studying the case file

35. Upon completion of the investigation, the detainee must be given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in paragraphs 2 and 3 (Article 109 § 5).

36. If access is granted on a later date the detainee must be released after the expiry of the maximum period of detention (Article 109 § 6).

37. If access is granted thirty days before the expiry of the maximum period of detention but the thirty-day period proves insufficient for reading the entire case file, the investigator may request the court to extend the period of detention. The request must be submitted no later than seven days before the expiry of the detention period (Article 109 § 7).

38. Within five days of receipt of a request for an extension, the judge must decide whether to grant it or to reject it and release the detainee. If the extension is granted the period of detention is extended until such time as will be sufficient for the detainee and counsel to finish reading the case file and for the prosecution to submit the case to the trial court (Article 109 § 8).

(c) Time-limits for detention “during judicial proceedings”

39. Once the defendant has finished reading the file, the prosecutor sends the case to the trial court and from that date the detention is classified as taking place “during judicial proceedings”). The period of detention “during judicial proceedings” is calculated up to the date on which judgment is given. It may not normally exceed six months, but if the case in question 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).

4. Case-law of the Supreme Court of the Russian Federation

40. In its decision no. 22 of 29 October 2009 on the application by the courts of preventive measures in the form of detention on remand, bail and house arrest, the Plenum of the Supreme Court held as follows:

“18. ... Pursuant to Article 109 § 7 of the Code of Criminal Procedure, following a request by an investigator a court may extend an accused ’ s detention until such time as he and his defence counsel have finished studying the case file and the prosecutor has submitted it to the [trial] court, if upon completion of the pre-trial investigation, the accused has been given access to the case file no later than thirty days before the expiry of the maximum period of detention indicated in Article 109 §§ 2 and 3. In such case the relevant extension order should indicate the exact period for which the extension is made.”

COMPLAINTS

41. The applicant complains under Article 5 § 1 (c) of the Convention that his detention was unlawful in so far as it exceeded the maximum detention period provided for by the domestic law.

42. The applicant complains that his pre-trial detention was in contravention of the “reasonable time” requirement set out in Article 5 § 3 of the Convention.

43. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that he did not have a fair trial in the criminal proceedings against him, in particular because he was unable to secure the attendance of ten prosecution witnesses in order to question them.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention after 21 May 2008 compatible with the requirements of Article 5 § 1 (c) of the Convention? In particular:

(a) Did it comply with the “procedure prescribed by law”?

(b) Did the domestic courts duly apply the relevant legislation? If so, w ere the provisions of the Code of Criminal Procedure of the Russian Federation sufficiently precise and foreseeable in their application, in so far as they provided for the extension of a defendant ’ s detention beyond the maximum twelve-month time-limit on the ground of the need for the prosecution to make a copy of the case file, given that the defendant had already finished studying it?

2. Was the length of the applicants ’ pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? Was the applicant able to secure the attendance of and to examine witnesses against him, as required by Article 6 § 3 (d) of the Convention?