SEPARATE CONCURRING OPINION OF JUDGE KOVLER

(Translation)

In general I share my colleagues' opinion in this case. However, having regard to the legal importance of the Court's judgment, I consider it necessary to make certain remarks.

1. The reservation made by Russia in respect of Article 5 §§ 3 and 4 of the Convention concerning the application of certain provisions of the RSFSR Code of Criminal Procedure of 27 October 1960 (“CCP”), with the subsequent amendments to the procedure for the detention on remand of suspects, extends also to Article 97 on “Custodial periods” of the CCP,  mentioned in the reservation along with other provisions of the CCP. I find it difficult, therefore, to justify the Court's conclusion in paragraph 108 of the judgment that the reservation does not cover part of the applicant's pre-trial detention.

In my view, it would have been more appropriate for the Court to hold that the reservation at least extends to the period spent by the applicant in custody pending the criminal investigation. Nevertheless, it should be borne in mind that a broad construction of the text of the reservation as it applies to Article 97 of the CCP could result in certain findings that extensions of detention on remand beyond the time-limits set out in Sections 4-7 of Article 97 of the CCP are lawful: in cases where the defendant and his or her advocate cannot examine the case-file before the expiry of the maximum custody period, where the defendant and his or her advocate request further investigations or when a court remits a case for further investigations when the custody period has expired.

In other words, Russia's reservation under Article 5 §§ 3 and 4 applies not only to the procedure for remand in custody (which, by the way, is being drastically modified as of 1 July 2002 when relevant provisions of the new CCP come into force), but also to other pre-trial custody periods. In this connection, it is necessary to determine whether “detention on remand” includes the time spent in custody after the criminal case has been transferred to the trial court.

2. Russian procedural law distinguishes between two types of detention on remand: preliminary detention pending the investigation ( « за следствием » ) and preliminary detention pending trial ( « за судом » ). This difference is reflected in the law of 13 June 2001 which limited to six months the maximum length of court proceedings in criminal cases. However, in paragraph 110 of its judgment, the Court, with reference to its case-law, considered that detention on remand encompasses the whole pre-trial detention period, from the day when the individual is taken into custody until the trial court's verdict. After all, for a detainee locked up in an overcrowded prison cell, it makes little difference whether his or her detention is considered to be pending the investigation or pending the trial, or whether it was effected before or after the Convention came into force in respect of the respondent State. This difference could, however, be of importance for the Court, if the Court were to accept that a State's margin of appreciation is relevant to the determination of the reasonableness of custody periods.

The applicant was remanded in custody pending the investigation from 29 June 1995 (the day when he was taken into custody) until 19 June 1996 (the day when the Regional Prosecutor's Office transferred the case to the Magadan City Court), i.e. eleven months and twenty-two days, which is less than the maximum period of eighteen months set out in Section 2 of Article 97 of the CCP, after which a defendant may be immediately released (Section 3 of Article 97 of CCP). This part of the applicant's detention cannot be imputed to the respondent State because it pre-dated the entry into force of the Convention in respect of Russia (incompatible ratione temporis ).

The applicant's detention pending the court proceedings lasted until 3 August 1999, when the Magadan City Court gave its first judgment, i.e. three years one month and twenty-one days (as the Court has established in paragraph 110 of its judgment, above). One should not forget that the delay in passing verdict and, consequently, the applicant's prolonged stay in custody, was partly attributable to the applicant's challenges to judges and his requests that the proceedings be conducted by a different court, as well as to the replacement of advocates and their failure to appear, which facts the Court implicitly accepts at paragraph 130 of its judgment. This delay totalled one year and three months. It would not, of course, justify the procedural delays caused by the courts themselves, but nonetheless creates a different picture of the applicant's detention pending trial.

Finally, the remittance of the case for further investigation and the delivery by the Magadan City Court on 31 March 2000 of the second verdict extended the custody period by another seven months, in accordance with Section 7 of Article 97 of the CCP.

However, in all, the applicant spent five years, one month and twenty-three days in custody, four years, nine months and two days of which were spent in Remand Centre No. 1 at Magadan. This cannot be considered to be a reasonable custody period for the purposes of Article 5 § 3 of the Convention, despite the circumstances I have mentioned above. Pursuant to Section 8 of Article 97 of the CCP, the applicant complained several times to the courts about the lawfulness and validity of his detention. He thereby exhausted, as required by Article 35 § 1 of the Convention, all the domestic remedies available to him in this respect.

3. As regards the issues under Article 6 § 1 of the Convention (a fair and public hearing within a reasonable time), the Court has, unfortunately, in my view disregarded the fact that the applicant did not make use of his right to lodge an appeal against the verdict of 3 August 1999; thus leaving open a question of exhaustion of domestic remedies. It is true, however, that the applicant's arguments are reinforced by the fact that this verdict was not final, given the further investigation and new verdict given on 31 March 2000.

4. Having regard to the above considerations, I consider it appropriate to concur with the opinion of my colleagues as to the violations of Articles 3, 5 § 3 and 6 § 1 of the Convention, but believe that the award of just satisfaction in paragraph 143 of the judgment should have been separately assessed in respect of the different violations found.