FIRST SECTION

Application no. 4613/09 Valentin Anatolyevich SYASKO against Russia lodged on 25 November 2008

STATEMENT OF FACTS

The applicant, Mr Valentin Anatolyevich Syasko , is a Russian national, who was born in 1964 and lives in Moscow.

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

In 2006 three sets of criminal proceedings were initiated against the applicant.

On 29 December 2006 Tverskoy District Court, Moscow, found the applicant guilty of fraud and unlawful getting of a loan and sentenced him to five years ’ imprisonment suspended on five years ’ probation. On 16 April 2007 the Moscow City Court (“the City Court”) upheld that judgment.

On 22 September 2008 Khamovnicheskiy District Court, Moscow, found the applicant guilty of fraud and sentenced him to five years ’ imprisonment. The court held that the term of the applicant ’ s imprisonment had to be calculated as of 22 May 2008, the date of his arrest in those criminal proceedings. On 2 February 2009 the City Court upheld that judgment.

On 15 June 2011 Voskresenskiy Town Court (“the Town Court”), Moscow Region, found the applicant guilty of forming and leading a an organised criminal group which had committed a large-scale bank fraud and sentenced him to nine years ’ imprisonment. The court acquitted the applicant of the remaining charges. On 18 August 2011 the Moscow Regional Court (“the Regional Court”) upheld that judgment.

The present case concerns the third set of criminal proceedings.

A. The applicant ’ s arrest and detention during investigation

On 1 March 2006 criminal proceedings were instituted into a bank fraud committed by a group of individuals. Between March and July 2006 the investigating authorities on several occasions questioned the applicant as a witness.

On 19 July 2006 the applicant was arrested on suspicion of being involved into that fraud. On the next day he was charged with forming and leading a criminal group which had committed a large-scale bank fraud, forged documents and unlawfully used them.

On 21 July 2006 Tverskoy District Court, Moscow, ordered to place the applicant in detention. The court held that the applicant had been charged with a serious offence which was particularly dangerous for society and that other criminal proceedings against the applicant had been pending on similar charges. The court noted that the applicant lived and worked in Moscow, was married and had three children; however, if released, he might continue his criminal activities, abscond and interfere with the proceedings. It is not clear whether the applicant appealed against that decision.

On 18 September 2006 the Town Court extended the applicant ’ s detention until 1 December 2006. The court held that the applicant had been charged with a number of serious offences and that the investigating authorities were planning to seize documents on the premises of the company in which the applicant occupied a manager ’ s position. Therefore, if released, the applicant might abscond and interfere with the proceedings.

On 27 September 2006 the applicant appealed against that decision. There is no information in the case file on the outcome of those appeal proceedings.

On 29 November 2006 the Town Court extended the applicant ’ s detention until 19 January 2007. The court held, in particular, that the applicant had been charged with three criminal offences including a serious one and one of his co-defendants had absconded. Therefore, if released, the applicant might interfere with the proceedings by putting pressure on victims and witnesses. The court further noted that the applicant might also abscond because he had several forged passports issued in different names. Taking into account the above elements the court held that there had been no grounds to alter the preventive measure.

The domestic courts further extended the applicant ’ s detention on 19 January until 1 March 2007, 28 February until 1 June 2007 and on 30 May until 19 July 2007 referring to the same grounds as in the decision of 29 November 2006.

The detention orders of 28 February and 30 May 2007 were upheld by the City Court on 2 April and 2 July 2007 respectively.

On 9 July 2007 the prosecutor discontinued criminal proceedings against the applicant on charges of organisation of forgery of documents and use of such documents.

On 10 July 2007 the applicant was presented with a new version of the charges against him. He was charged with forming a leading a criminal group which had committed a large-scale bank fraud and money laundering.

The City Court further extended the applicant ’s detention on 19 July until 1 September 2007, on 28 August until 1 December 2007 and on 27 November 2007 until 19 January 2008 on the same grounds as before.

Those detention orders were upheld by the Supreme Court of the Russian Federation (“the Supreme Court”) on 27 September and 9 October 2007 and 15 January 2008 respectively.

On 14 December 2007 the applicant and his counsel started familiarising themselves with the materials of the case.

The City Court further extended the applicant ’ s detention on 16 January until 1 March 2008 and on 26 February until 1 June 2008. [1] Those detention orders were upheld by the Supreme Court on 5 March and 9 April 2008 respectively.

On 16 May 2008 the applicant finished familiarising himself with the materials of the criminal case.

B. The applicant ’ s detention during first examination of his case

On 19 May 2008 the criminal case against the applicant and his seven co ‑ defendants was forwarded to the Town Court for trial.

On 28 May 2008 the Town Court held a preliminary hearing in the case. The applicant asked the court to postpone the hearing because his counsel had been busy in unrelated criminal proceedings and could not attend the hearing. The court held that the applicant ’ s counsel had been duly notified of the hearing and therefore there were no grounds to adjourn the proceedings. The court heard the applicant, his co-defendants and the prosecutor. The applicant agreed with the court ’ s proposal to return the case to the prosecutor on the grounds of procedural shortcomings, but asked to release him on bail. The court decided to return the case to the prosecutor and held that there were no grounds to alter the preventive measure applied to the applicant. However, it did not set any time-limit for the applicant ’ s detention.

On 21 August 2008 the Regional Court, on the prosecutor ’ s appeal, quashed the decision of 28 May 2008 in so far as it had returned the case to the prosecutor and remitted the matter for new examination to the first ‑ instance court. The Regional Cour t upheld the decision of 28 May 2008 in so far as it had maintained the applicant in detention. It also held that the measure of restraint applied to the applicant should remain unchanged. Both the applicant and his counsel Kh . were present at that hearing and submitted their arguments to the appeal court.

On 23 September 2008 Babushkinskiy District Court, Moscow, dismissed the applicant ’ s complaint of 20 August 2008 against the head of the remand prison who had refused to release him on 19 January 2008 after the expiry of the eighteen-month period of detention during the investigation. The applicant alleges that his appeal against that decision was never examined.

The Town Court further extended the applicant ’ s detention on 14 November 2008 until 19 February 2009, 19 February until 19 May 2009, on 18 May until 19 August 2009, on 14 August until 19 November 2009 and on 17 November 2009 until 19 February 2010.

The detention orders of 14 November 2008, 14 August 2009 and 17 November 2009 were upheld by the Regional Court on 22 December 2008, 10 September and 22 December 2009 respectively.

On 12 February 2010 the Town Court held that the measure of restraint applied to the applicant should be quashed, since in any event he had been serving a sentence of imprisonment following his conviction on 22 September 2008.

On 11 March 2010 the Regional Court quashed the decision of 12 February 2010 and remitted the matter to the first-instance court for new examination.

On 2 April 2010, after a fresh examination of the matter, the Town Court extended the applicant ’ s detention until 19 May 2010. The court held, in particular, that if released the applicant might destroy evidence or interfere with the proceedings in a different way. The court further noted that on 22 September 2008 the applicant had been convicted of a criminal offence in unrelated set of criminal proceedings and was sentenced to five years ’ imprisonment. However, the courts could review that conviction and even release the applicant or amnesty him. In addition, it followed from the materials of the case that the applicant possessed a passport issued in the name of a certain Mr Zhdanov. Finally, the court considered that the measure of restraint applied to the applicant could not be altered solely on the grounds of his positive references and of the fact that he had minor children.

On 14 May 2010 the Town Court extended the applicant ’ s detention until 19 August 2010 referring to the same grounds as in the decision of 2 April 2010.

On 21 May 2010 Town Court found the applicant guilty of bank fraud and sentenced him to ten years and six months ’ imprisonment. [2]

C. Quashing of the applicant ’ s conviction on appeal and the applicant ’ s detention during second examination of his case

On 8 July 2010 the Town Court extended the applicant ’ s detention until 19 November 2010.

On 26 August 2010 the Regional Court quashed the judgment of 21 May 2010 on appeal and remitted the case for a fresh examination to the Town Court. On the same date the Regional Court held that the applicant should remain in detention until 30 September 2010. [3]

On 17 September 2010 the Town Court held a preliminary hearing of the case. The court extended the applicant ’ s detention until 30 December 2010. The applicant participated in that hearing in person and was assisted by state appointed counsel V.

On 7 October 2010 the Town Court decided to return the case to the prosecutor. [4]

On 2 November 2010 the Regional Court, in the applicant ’ s absence, upheld the decision of 17 September 2010.

On 25 November 2010 the Regional Court quashed the decision of 7 October 2010 and held that the applicant should stay in detention. [5]

On 21 December 2010 the Town Court dismissed the applicant ’ s objection to the presiding judge. The applicant alleges that the Town Court did not forward his appeal against that decision to the appeal court.

The Town Court further extended the applicant ’ s detention on 23 December 2010 until 30 March 2011 and on 30 March until 30 June 2011 on the same grounds as before.

On 7 April 2011 the Regional Court, in the applicant ’ s absence, upheld the detention order of 30 March 2011.

On 27 April 2011 the Town Court examined the applicant ’ s request to summon to the hearing seventeen witnesses on his behalf. The court agreed to summon two witnesses and considered that it was not necessary to hear the testimony of the remaining witnesses.

On 15 June 2011 the Town Court found the applicant guilty of having organised and being the leader of a criminal group which had committed a large-scale bank fraud and sentenced him to seven years ’ imprisonment. The court acquitted the applicant of the remaining charges. The court further held that taking into account that on 22 September 2008 the applicant had been sentenced to five years ’ imprisonment, his cumulative sentence would amount to nine years ’ imprisonment. During the second examination of his criminal case the applicant was represented by state appointed counsel V.

On 18 August 2011 the City Court upheld the applicant ’ s conviction in the presence of the applicant and his counsel Kh .

On 9 June 2012 the applicant was released on parole.

COMPLAINTS

The applicant complains under Article 3 that his conviction was based on the testimony by witnesses and his co-defendants obtained under duress.

He complains under Article 5 § 1 that his detention on the basis of detention orders of 16 January, 26 February and 28 May 2008 was unlawful because the maximum statutory period of detention during investigation had expired on 19 January 2008.

He complains under Article 5 §§ 1 and 3 that his pre-trial detention was not based on relevant and sufficient reasons and was very long.

He complains under Article 5 § 4 that:

(a) he could not properly prepare for the hearing of 28 May 2008 because of belated notification;

(b) on 28 May 2008 his detention was extended in the absence of his counsel; and

(c) his appeals against the detention orders of 17 September 2010 and 30 March 2011 were examined in his absence.

He complains under Article 6 that on 23 September 2008 Babushkinskiy District Court, Moscow, did not examine his complaint against the head of the remand prison for his failure to release him after the expiry of the maximum period of detention, that decision was not taken speedily and was taken in the applicant ’ s and his counsel ’ s absence; the City Court did not examine his appeal against that decision.

He complains under Article 6 § 1 and Article 13 that the trial court was not impartial and independent. In particular, the court wrongly assessed the evidence and wrongly established the facts of the case, refused to enclose to the case-file additional evidence provided for by defence and to appoint additional expert examinations, did not allow the applicant putting certain questions to witnesses and sometimes suggested them how to reply on his questions or replied on their behalf, refused to attach the property of the applicant ’ s company, relied on inadmissible evidence and did not refer his appeal against the decision of 21 December 2010 to the appeal court.

He complains under Article 6 § 3 (a) that the investigator in charge of the case did not properly inform him of the charges against him.

He complains under Article 6 § 3 (b) and (c) that:

(a) he did not have sufficient time to appoint counsel of his choosing because he was not duly notified of the preliminary hearing of 17 September 2010;

(b) state-appointed counsel could not defend him effectively because he did not have sufficient time to familiarise himself with the materials of the case and did not have regular confidential meetings with the applicant; and

(c) he did not have sufficient time to prepare his defence because of belated notification of the preliminary hearing of 17 Se ptember 2010 and because all further court hearings were scheduled on a daily basis.

He complains under Article 6 § 3 (d) that the trial court read out in the hearing the testimony by a number of prosecution witnesses whom he had no opportunity to question at trial and refused to summon to the hearing certain defence witnesses.

He complains under Article 6 that the criminal proceedings against him were excessively long.

He complains under Article 1 of Protocol No.1 that his company was unable to pay its bank loans because of investigating activities carried out on its premises; the authorities did not take due measures to protect the property of his company during the criminal proceedings against him.

He complains under Article 1 of Protocol No. 4 that he was detained and then convicted for his failure to pay his debts.

QUESTIONS TO THE PARTIES

1. Having regard to the reasons expressly relied on by the domestic courts in the detention orders (see, for example, Bykov v. Russia [GC], no. 4378/02, § 66, 10 March 2009 and Savenkova v. Russia , no. 30930/02 , §§ 85 and 87, 4 March 2010), w as the applicant ’ s detention on remand justified by “relevant and sufficient reasons”, as required by Article 5 § 3 of the Convention in conjunction with Article 5 § 1 (c) thereof?

2. Did the authorities display “special diligence” in the conduct of the proceedings against the applicant, as required by Article 5 § 3 of the Convention? In particular, did the courts assess specific procedural actions which needed to be taken during the investigation and the trial, and the reasons why those actions had not been taken earlier or could not have been taken in a more speedy fashion (see Valeriy Samoylov v. Russia , no. 57541/09 , § 123, 24 January 2012 and Syngayevskiy v. Russia , no. 17628/03 , §§ 82 - 86, 2 7 March 2012) ?

The Government are requested to provide a list of all detention orders issued in the applicant ’ s respect with indication of the dates on which those decisions were issued, the periods of detention which they covered and the dates of relevant appeal decisions (if any). The Government are also requested to provide copies of missing detention orders and decisions of the appeal court. In addition, they are requested to submit copies of the judgment of the Voskresenskiy Town Court of 21 May 2010 and of the decision of 26 August 2010 of the Moscow Regional Court.

[1] The applicant did not provide the Court with copies of those detention orders

[2] The applicant did not provide the Court with a copy of that judgment.

[3] The applicant did not provide the Court with a copy of that decision.

[4] The applicant did not provide the Court with a copy of that decision.

[5] The applicant did not provide the Court with a copy of that decision.