Communicated on 9 December 2013

FIRST SECTION

Application no. 13627/09 Sergey Valentinovich SHARDAKOV against Russia lodged on 29 January 2009

STATEMENT OF FACTS

The applicant, Mr Sergey Valentinovich Shardakov , is a Russian national, who was born in 1967 and lives in Moscow.

A. The circumstances of the case

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

In March 2006 the Russian authorities instituted criminal proceedings on indications that female adolescents had been forced to prostitute themselves. According to the applicant, the case was opened following a testimony from Ms V. who, however, did not complain that she had been among these minors. It appears that Ms V. was interviewed as a prosecution witness in the course of these proceedings.

On 7 July 2006 the applicant was arrested on suspicion of human trafficking (Article 127.1 of the Criminal Code, “CC”) in respect of minors who, allegedly, had been forced to prostitution.

On 8 July 2006 the Donsk Town Court of the Tula Region ordered his detention pending investigation. On 7 September 2006 the Town Court extended the applicant ’ s detention until 30 September 2006. On 29 September 2006 a new extension was issued until 30 November 2006. On 23 November 2006 the court extended the applicant ’ s detention until 30 January 2007. On 29 January 2007 his detention was extended to 30 March 2007; and on 29 March 2007 – until 30 April 2007. The applicant did not appeal against the above detention orders issued under Articles 108 and 109 of the Code of Criminal Procedure ( CCrP ) relating to detention pending investigation.

In the meantime, the applicant was charged, in respect of several episodes or victims, with compulsion to prostitution, organisation of activities relating to prostitution, compulsion of a minor to commit a criminal offence and unlawful deprivation of liberty (Articles 240, 241, 150 and 127 of the Criminal Code respectively).

On an unspecified date, the case against the applicant was submitted for a trial before the Town Court.

On 26 April 2007 the Town Court scheduled the first hearing, held that there were no reasons to release the applicant and ordered his continued detention for six months, with reference to Article 255 of the CCrP relating to detention pending trial. The applicant did not appeal against this detention order.

It is unclear whether there were any court hearings in the criminal cases until October 2007.

On 8 October 2007 the Town Court extended the applicant ’ s detention for three months, noting that the circumstances which justified the initial detention order in July 2006 persisted.

On 16 January 2008 the Town Court extended the applicant ’ s detention for three months.

On 24 March 2008 the trial court returned the case to the prosecutor and extended the applicant ’ s detention until 17 May 2008, with reference to Article 237 of the CCrP . The file was not forwarded the prosecutor because an appeal against the decision of 24 March 2008 was pending.

In the meantime, on 7 May 2008 the Town Court issued an extension decision with reference to Article 255 of the CCrP . On 4 June 2008 the Regional Court upheld this detention order.

On an unspecified date, the Tula Regional Court upheld the decision of 24 March 2008.

On an unspecified date, the prosecutor received the file. Having received the file, the prosecutor sought extension of the applicant ’ s detention. On 15 August 2008 the Donsk Town Court extended the applicant ’ s detention until 25 August 2008, to reach the total amount of detention of twelve months (to be calculated under Article 109 of the CCrP ).

The applicant alleges that no extension up to twelve months could be lawful since it could only be authorised in relation to “particular serious” offences whereas he was charged with “serious” offences under the classification of the Criminal Code. Thus, he should have been released on 25 August 2008 at latest.

In the meantime, on 19 August 2008 a new criminal case was opened against the applicant on a complaint from Ms V. It appears that in her complaint Ms V. accused the applicant and his accomplices of having forced her to prostitution.

The applicant alleges that counsel was not present during the interview with the investigator when the applicant was given the document listing the factual basis of the charges and the charges.

On 22 August 2008 a court ordered the applicant ’ s detention pending investigation of this second case. The court refused to delve into the question of whether the available evidence confirmed, in any way, that he applicant could be implicated in the offence under Article 240 of the CC in respect of V. Apparently, the detention court did not delve into whether there was any “reasonable suspicion” that the applicant could have committed the above offence in respect of V.

The applicant ’ s counsel appealed arguing that detention was inappropriate because the applicant had minor dependants and stable employment, and because the facts relating to V. could be part of the first case. On 15 October 2008 the Tula Regional Court upheld this detention order.

On 20 October 2008 the court extended the applicant ’ s detention for four months. Apparently, the court did not delve into whether there had been and persisted any reasonable suspicion that the applicant could have committed the offence under Article 240 of the CC in respect of Ms V.

The applicant appealed arguing that the detention court had not established whether there was any reasonable suspicion against him.

On 3 December 2008 the Regional Court upheld the detention order, considering that the continued detention was necessary to complete the investigation and that it was not necessary to submit any evidence confirming the risk of fleeing investigation, reoffending or otherwise interfering with the course of justice. The appeal court also stated that it had no jurisdiction to consider whether there had been sufficient grounds for instituting criminal proceedings on V. ’ s complaint.

Another extension order was issued on 17 February 2009.

The applicant argued that a court in the Tula Region is not competent to examine the first criminal case and sought that the case be transferred to the town of Podolsk .

On 7 May 2009 the Donsk Town Court of the Tula Region decided that the Podolsk Town Court of the Moscow Region was competent to deal with the first case against the applicant. The court noted that that the applicant and his co-accused were charged with offences committed in Moscow and Moscow region.

The applicant was transferred from the Tula Region to the Moscow Region.

Apparently, on 8 May 2009 the Novomoskovsk Town Court of the Tula Region ordered the applicant ’ s release against his undertaking not to leave the town.

On 14 May 2009 the Novomoskovsk Town Court refused to extend the applicant ’ s detention in the second case.

The applicant was released on 19 May 2009.

On 7 October 2009 the Podolsk Town Court of the Moscow Region ordered the applicant ’ s detention, this time, in relation to the first criminal case pending before it. On 10 December 2009 the Moscow Regional Court upheld this detention order.

On the same day, the Podolsk Town Court held a preliminary hearing in the first criminal case and ordered that the applicant should remain in detention until April 2010. The court also dismissed the applicant ’ s objection to the court ’ s territorial jurisdiction, stating that the applicant himself had suggested in May 2009 that the case should be transferred to Podolsk .

On 9 August 2010 the Town Court convicted the applicant of the offences under Articles 127, 150, 240 and 241 of the CC. The court sentenced him to ten years ’ imprisonment. On 2 December 2010 the Regional Court upheld the judgment.

The outcome of the second case remains unclear.

B. Relevant domestic law and practice

Criminal proceedings may be instituted if there is ( i ) a complaint alleging that a criminal offence was committed; (ii) a voluntary confession; or (iii) information about a completed or planned offence (Article 140 of the Code of Criminal Procedure, “ CCrP ”).

Under Article 91 of the CCrP the police may arrest a person suspected of having committed an offence punishable by imprisonment if ( i ) the person is caught in the act or immediately after committing the offence ; (ii) eyewitnesses or victims have pointed to this person as the alleged perpetrator of the crime; or (iii) this person displays traces of the crime.

When deciding on detention pending investigation, the competent authority is required to establish whether there are “sufficient grounds to consider ” that the accused would abscond during the investigation or trial, reoffend or obstruct the establishment of the truth (Article 97 of the CCrP ). It must also take into account the gravity of the offence , information on the accused ’ s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

In its ruling no. 5 of 10 October 2003 (concerning domestic application of international law and international treaties) the Supreme Court of Russia reminded the lower courts that under the Convention existence of a reasonable suspicion is a condition sine qua non for the assessment of the lawfulness of arrest/detention.

No corresponding provision is made in ruling no. 1 of 5 March 2004 by which the Supreme Court provided guidance to the lower courts as to the application and interpretation of the CCrP , in particular as regards arrest and detention in criminal proceedings.

In its ruling no. 22 of 29 October 2009 (concerning arrest, detention and other preventive measures in criminal cases) the Plenary Session of the Supreme Court of Russia reminded the courts below of the requirement of “reasonable suspicion” which has to be complied with in each case. The Supreme Court defined “reasonable suspicion” as sufficient indications (for instance those mentioned in Article 91 of the CCrP ) that the person concerned could commit the offence.

Detention pending investigation may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by more than two years ’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

Under Article 237 of the CCrP , the trial judge can return the case to the prosecutor for defects impeding the trial to be remedied, for instance if the judge has identified serious deficiencies in the bill of indictment or a copy of it was not served on the accused. The judge must require the prosecutor to comply within five days and must also decide on a preventive measure in respect of the accused. By a federal law no. 226-FZ of 2 December 2008, Article 237 was amended to the effect that, if appropriate, the judge should extend the defendant ’ s detention with due regard to the time-limits in Article 109 of the Code.

In several decisions in 2012 (nos. 1852-O, 1853-O and 1854-O of 4 October 2012; no. 2001-O of 1 November 2012) the Russian Constitutional Court held that a detention order taken under Article 237 of the CCrP (as amended in 2008 ) could authorise a period of detention which did not exceed the applicable maximum statutory period under Article 109 of the CCrP for a given criminal offence. At the same time, the above calculation should not include the period of detention between the court ’ s recei pt of the criminal case for trial and the return of this case to the prosecutor.

COMPLAINTS

Referring to Articles 3, 5, 6, 13 and 17 of the Convention, t he applicant complains that there was no reasonable suspicion against him for ordering his detention in July 2006; that his detention in both cases was not based on relevant and sufficient reasons and that the detention courts failed to examine alternative measures. The applicant also alleges that the detention order of 22 August 2008 was unlawful and that, in any event, his detention after 25 August 2008 in relation to the first case was unlawful; that the detention order in the second criminal case was arbitrary and unlawful. The applicant argues that his detention was unlawful because he was never formally charged and tried for the offence under Article 127.1 of the CC.

QUESTIONS TO THE PARTIES

1. Was the applicant ’ s detention from March to August 2008 in compliance with Article 5 § 1 of the Convention (see Shteyn (Stein) v. Russia , no. 23691/06, §§ 91-95, 18 June 2009 )? In particular, did the applicant ’ s detention during this period of time exceed the maximum twelve-month period authorised by Article 109 of the Code of Criminal Procedure (see “Relevant domestic law and practice”)?

2 . ( a ) As to the second criminal case, was the applicant ’ s detention lawful and not arbitrary? In particular, was the applicant ’ s detention based on a reasonable suspicion that he was implicated in the offence ( причаст е н к совершению преступления ) under Article 240 of the Criminal Code against Ms V., as required by Article 5 § 1 (c) and § 3 of the Convention ? In particular:

- At the relevant period of time (in 2008 and 2009), what was the statutory or jurisprudential basis requiring the presence of a reasonable suspicion when depriving one of his or her liberty in a criminal case (see “Relevant domestic law and practice”)?

- Was Ms V. ’ s complaint the only and sufficient basis in relation to the suspicion that the applicant could have committed the offence? Did the detention court examine this issue on 22 August 2008 or subsequently to confirm that the reasonable suspicion existed initially and persisted later on?

- Could the issue of “reasonable suspicion” be raised usefully (for the purpose of Article 5 of the Convention) when challenging a decision to institute criminal proceedings or seeking discontinuation of such proceedings?

- Did the alleged failure to explicate a “reasonable suspicion” against the applicant violate Article 5 § 1, § 3 or § 4 of the Convention?

Having regard to Article 38 of the Convention, the respondent Government are requested to submit a copy of the investigator ’ s request for detention, all supporting material that was submitted in support of this request; and the hearing record of 22 August 2008.

(b) Was the applicant ’ s detention pending the investigations (in the first and second cases) and pending the trial in the first case based on relevant and sufficient reasons, as required by Article 5 § 3 of the Convention? Having regard to the nature of the undertaking not to leave the town ( подписка о невыезде ), should the period between May and October 2009 be taken into consideration?