FIRST SECTION

Application no. 1346/12 Fjodor OVSJANNIKOV against Estonia lodged on 7 December 2011

STATEMENT OF FACTS

The applicant, Mr Fjodor Ovsjannikov , is an Estonian national, who was born in 1960 and lives in Narva . He is represented before the Court by Mr A. Lillo, a lawyer practising in Tartu .

A. The circumstances of the case

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

The applicant is an entrepreneur, a member of the Narva City Council and chairman of its financial committee.

On 27 October 2010 criminal investigation into influence peddling in municipalities of the Ida- Viru County was initiated.

On 12 July 2011 the applicant was arrested under suspicion of prejudicing free competition, influence peddling, demanding bribes and money laundering.

On 13 July 2011 he was presented with a formal suspicion. It appears that in the suspicion reference was made to certain unlawful practices in general as well as some specific acts allegedly committed by the applicant.

Also on 13 July 2011 the prosecutor asked the Viru County Court to issue a detention order for the applicant. He considered that the evidence presented to the court (statements of witnesses and suspects, copies of contracts, procurement documents, bank account statements, inspection reports and surveillance reports) gave grounds for the suspicion against the applicant. Furthermore, bringing of further charges against the applicant could not be excluded since there were hints about other similar episodes. The prosecutor noted that considering the nature of the crimes the applicant was suspected of and having regard to his active and leading role therein, there was a reasoned suspicion that, if at liberty, he could compromise the ongoing investigation by tampering with the evidence or exerting pressure on witnesses or other suspects. In the course of the investigation several witnesses (including municipal officials) had testified that the applicant had influenced them to take decisions in his favour and threatened them with troubles or loss of employment. There was further information and evidence indicating that the applicant was a wealthy and influential person who could carry out his threats and affect the processes in the city. Reference was also made to a number of his acts referring to his ongoing corrupt behaviour regardless of the detention of a number of his accomplices. The prosecutor considered that there was a real risk that, if at liberty, the applicant could contact other persons in order to hinder the investigation and influence the municipal officials, entrepreneurs and other witnesses who had so far given statements against him. Exerting influence on the witnesses or tampering with the evidence could be seen as possible offences.

Before the hearing on 13 July 2011 the prosecutor gave the County Court judge a possibility to examine the case file. Then the court heard the prosecutor and the applicant who was assisted by a lawyer. The lawyer requested access to the material presented to the court; the prosecutor objected. The County Court decided not to grant the defence access to the materials in question since the law did not foresee such a possibility.

On 14 July 2011 the Viru County Court remanded the applicant in custody. Referring to the material in the case file it considered that there was sufficient evidence for a reasonable suspicion against the applicant. The court endorsed the prosecutor ’ s arguments as to the need for the applicant ’ s detention. It considered that this was necessary in order to prevent the commission of further crimes by him.

On 17 August 2011 the Tartu Court of Appeal dismissed the applicant ’ s appeal against the detention order.

Although no appeal lay against the appeal court ’ s decision, the applicant filed an appeal with the Supreme Court, relying on the unconstitutionality of the lower court ’ s interpretation of the law. By a letter of 21 September 2011 the Supreme Court returned the appeal because no appeal lay against the appeal court ’ s decision.

On 13 September 2011 the applicant ’ s lawyer requested the Viru County Court to verify the reasons for the applicant ’ s detention and to release him.

On 23 September 2011 the Viru County Court dismissed the request. It reiterated its position that considering the circumstances of the offences allegedly committed by the applicant as well as his active and leading role therein, there was a well-founded risk that the applicant, if at liberty, could tamper with evidence and exert pressure on witnesses and suspects. He was considered to have wide and close political and economic connections and corresponding influence. Thus, the court considered that there were sound reasons for the applicant ’ s continued detention. No appeal lay against that decision.

In the meantime, the applicant requested release on bail. On 5 September 2011 the Viru County Court dismissed the request finding that, if released, the applicant could continue to commit offences. It referred in this context to the applicant ’ s past behaviour – he was suspected of commission of a number of different offences committed in the course of several years and further charges could be brought against him. In the course of the preliminary investigation witnesses had made statements about how the applicant had exerted influence on them. The information and evidence gathered indicated that the applicant could carry out his threats. There was information that he had continued his corrupt activities despite the detention of several accomplices.

On 4 October 2011 the Tartu Court of Appeal dismissed the applicant ’ s appeal against the County Court ’ s decision of 5 September 2011. It concurred with the lower court ’ s opinion and added that the applicant ’ s release on bail would not exclude him obstructing the establishment of the truth in the criminal case, regard being had to the nature of the suspicion, the number of persons related to it and the fact that the preliminary investigation was still in its initial stage. An appeal lay to the Supreme Court but there is no information on whether the applicant availed himself of this remedy.

On 15 November 2011 the applicant ’ s lawyer requested the Viru County Court to verify the reasons for the applicant ’ s detention and to release him.

On 12 December 2011 the Viru County Court dismissed the request. It found that the circumstances that had served as grounds for placing the applicant in detention had not ceased to exist. It again referred to the applicant ’ s role in the commission of the presumed offences and considered that, if at liberty, he could tamper with evidence and influence accused and witnesses. No appeal lay against the decision.

B. Relevant domestic law and practice

It follows from Articles 33 to 35 of the Code of Criminal Procedure ( Kriminaalmenetluse seadustik ) that an accused, unlike a suspect, has the right to examine the criminal file through his or her counsel. Article 47 § 1 (7) provides that counsel has the right to examine all materials in the criminal file upon the completion of pre-trial investigation.

Further relevant provisions of the Code of Criminal Procedure, as in force at the material time (until 31 August 2011) read as provided below. Certain amendments of no material importance for the present case entered into force on 1 September 2011.

Article 130 – Arrest and grounds for arrest

“(1) Arrest is a preventive measure which is applied with regard to a suspect, accused or convicted offender and which means deprivation of a person of his or her liberty on the basis of a court ruling.

(2) A suspect or accused may be arrested at the request of a Prosecutor ’ s Office and on the basis of an order of a preliminary investigation judge or on the basis of a court ruling if he or she is likely to abscond from the criminal proceeding or continue to commit criminal offences.

(3) In pre-trial procedure, a suspect or accused shall not be kept under arrest for more than six months. ...

(3-1) In the case of particular complexity or extent of a criminal matter or in exceptional cases arising from international cooperation in a criminal proceeding, a preliminary investigation judge may extend the term for keeping under arrest for more than six months at the request of the Chief Public Prosecutor.

... ”

Article 131 – Procedure for arrest

“(1) At the request of a suspect or accused, the Prosecutor ’ s Office shall immediately notify his or her counsel of preparation of an application for an arrest warrant.

(2) On the order of a Prosecutor ’ s Office, an investigative body shall convey a suspect or accused with regard to whom an application for an arrest warrant has been prepared to a preliminary investigation judge for the hearing of the application.

(3) In order to issue an arrest warrant, a preliminary investigation judge shall examine the criminal file and interrogate the person to be arrested with a view to ascertaining whether the application for an arrest warrant is justified. The prosecutor and, at the request of the person to be arrested, his or her counsel shall be summoned before the preliminary investigation judge and their opinions shall be heard.

...

(5) If there are no grounds for arrest, the person shall be released immediately.”

Article 134 – Refusal of arrest and release of arrested person

“ ...

(2) If the grounds for arrest cease to exist before a statement of charges is sent to a court pursuant to the procedure provided for in Article 226 § 3 of this Code, the preliminary investigation judge or Prosecutor ’ s Office shall release the arrested person by an order.”

Article 135 – Bail

“(1) At the request of a suspect or accused, a preliminary investigation judge or court may impose bail instead of arrest.

(2) “Bail” means a sum of money paid as a preventive measure by a suspect, accused or another person on behalf of him or her to the deposit account of the court. ...

(3) A suspect or accused shall be released from custody after the bail has been received into the bank account of the court.

(4) A court shall determine the amount of bail on the basis of the degree of the potential punishment, the extent of the damage caused by the criminal offence, and the financial situation of the suspect or accused. The minimum amount of bail shall be five hundred days ’ wages.

(5) Bail is imposed by a court ruling. For the purposes of adjudication of an application for bail, the arrested person shall be taken to the preliminary investigation judge; the prosecutor and, at the request of the arrested person, his or her counsel shall be summoned to the judge and their opinions shall be heard.

(5-1) At the request of the Prosecutor ’ s Office or on its own initiative, the court may, together with the imposition of bail, apply a prohibition on departure from residence with respect to a suspect or an accused pursuant to the procedure provided for in Articles 127 and 128 of this Code.

(6) If a suspect or accused absconds from criminal proceedings or intentionally commits another criminal offence or violates the prohibition on departure from his or her residence, the bail shall be transferred into public revenues on the basis of the court judgment or the ruling on termination of the criminal proceeding after deduction of the amount necessary for reimbursement of the expenses relating to the criminal proceedings.

(7) Bail shall be refunded if:

1. the suspect or accused does not violate the conditions for bail;

2. the criminal proceeding is terminated;

3. the accused is acquitted.”

Article 136 – Contestation of arrest or refusal of arrest

“A Prosecutor ’ s Office, a person under arrest or his or her counsel may file an appeal pursuant to the procedure provided for in Chapter 15 of this Code against a court ruling by which arrest was imposed or refused, extension of the term for keeping under arrest or refusal to extend the term for keeping under arrest.”

Article 137 – Verification of reasons for arrest

“(1) An arrested person or his or her counsel may, within two months after the arrest, submit a request to the preliminary investigation judge or court to verify the reasons for the arrest. A new request may be submitted two months after the review of the previous request.

(2) A preliminary investigation judge shall hear a request within five days as of its receipt. The prosecutor, the counsel and, if necessary, the arrested person shall be summoned before the preliminary investigation judge.

(3) In order to adjudicate a request, a preliminary investigation judge shall examine the criminal file. A request shall be adjudicated by a court ruling which is not subject to appeal.

(4) If the term for keeping a person under arrest has been extended for more than six months pursuant to the procedure provided for in Article 130 § 3-1 of this Code, the preliminary investigation judge shall verify the reasons for the arrest at least once a month by examining the criminal file regardless of whether verification of the reasons has been requested and shall appoint a counsel for the arrested person if he or she does not have a counsel.”

In a decision of 10 June 2010 (case no. 3-4-1-4-10) the Constitutional Review Chamber of the Supreme Court dealt with a complaint about denial of access of a person to be detained to the evidence on the basis of which his detention was decided. The Supreme Court declined to rule on the merits of the case in the constitutional review proceedings noting that other proceedings were available for the person concerned for the judicial protection of his rights. Notably, in case of the complainant ’ s request for the verification of the reasons for his arrest, he in substance complained about the acts of the prosecutor. However, he had not made a complaint to the State Prosecutor ’ s Office from which an appeal lay to the preliminary investigation judge of a county court. The latter was entitled to declare the pertinent regulation unconstitutional, order the prosecutor to release the evidence and initiate constitutional review proceedings before the Supreme Court. In respect of the initial arrest warrant, the Supreme Court found that the complainant could have requested the declaration of unconstitutionality of the underlying legislation when challenging the arrest warrant before a court of appeal.

COMPLAINTS

The applicant relies on Article 5 § 4 and Article 6 § 1 of the Convention. His complaints can be summarised as follows:

The applicant complains that he was given no access to the evidence in the case file on the basis of which the lawfulness of his detention and his requests for release were examined.

He further complains about the length of his pre-trial detention.

Lastly, the applicant also complains that there were no grounds for his placement in detention; he was not given access to the evidence on the basis of which his initial detention was ordered and the decision whereby he was remanded in custody lacked sufficient reasoning and did not address the arguments of the defence.

QUESTIONS TO THE PARTIES

1. Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?

1.1. In particular, were the proceedings in question before the Viru County Court adversarial and was the equality of arms ensured between the parties? Did the applicant have an opportunity to effectively challenge the basis of the allegations against him? Was the applicant or his lawyer given access to documents in the case file which formed the basis of the prosecution case against him (see, for example, Garcia Alva v. Germany , no. 23541/94, § 42, 13 February 2001 ; Reinprecht v. Austria , no. 67175/01, § 31, ECHR 2005 ‑ XII; Mooren v. Germany , no. 11364/03, § § 91-92 , 13 December 2007; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 204, ECHR 2009)?

1.2. In light of the decision of 10 June 2010 (case no. 3-4-1-4-10) of the Constitutional Review Chamber of the Supreme Court, was a complaint to the State Prosecutor ’ s Office against the prosecutor ’ s refusal to grant the applicant access to the case file, and a subsequent complaint to the County Court, an effective remedy to be exhausted within the meaning of Article 35 § 1 of the Convention? Would such a remedy have allowed the applicant to obtain access to pertinent documents in the case file in due time, considering, on the one hand, the requirement of speedy review at reasonable intervals under Article 5 § 4 and the five-day time-limit allowed for the preliminary investigation judge for hearing a detainee ’ s request (Article 137 § 2 of the Code of Criminal Procedure) and, on the other hand, the thirty-day time-limit allowed both for the State Prosecutor ’ s Office and the preliminary investigation judge to decide on the complaints against a prosecutor (Article 229 § 1 and Article 231 § 1, respectively, of the Code of Criminal Procedure)?

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