CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 28 mai 2009

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sB8084949 { width:138.49pt; display:inline-block } .s2A91C753 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 18218/04 by Mikhail Vadimovich RESHETNIKOV against Russia The European Court of Human Rights (First Section), sitting on 28 May 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges,   and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 20 April 2004, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Mikhail Vadimovich Reshetnikov, is a Russian national who was born in 1975 and lives in Chelyabinsk. He was represented before the Court by Mr M. Rachkovsky, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, Mr A. Savenkov, First Deputy Minister of Justice, and Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 February 2003 charges of rape were brought against the applicant, and he was detained pending the investigation. A.     The applicant’s conviction On 4 July 2003 the Kalininskiy District Court of Chelyabinsk convicted the applicant of illegal deprivation of liberty, sexual abuse and attempted rape and sentenced him to eight years’ imprisonment. The applicant appealed, alleging a violation of his right to defence. On 27 November 2003 the Chelyabinsk Regional Court quashed the judgment on appeal, having considered that the applicant’s right to defence had been violated during the trial, and remitted the case for a retrial. On 18 February 2004 the Presidium of the Chelyabinsk Regional Court quashed the decision of 27 November 2003 by way of supervisory review and remitted the judgment of 4 July 2003 for a new appeal hearing. On 18 March 2004 the Chelyabinsk Regional Court reduced the applicant’s sentence to six years and six months’ imprisonment and upheld the rest of the judgment on appeal. B.     Quashing of the applicant’s conviction by way of supervisory review Following the applicant’s request, on 29 April 2005 the Supreme Court of Russia, having considered that the applicant’s right to defence had not been respected at the stage of the pre-trial investigation, quashed the judgment of 4   July 2003, as upheld on 18 March 2004, by way of supervisory review, and remitted the case for a retrial. The Supreme Court ordered that the applicant should be remanded in custody pending determination of the criminal charge against him. The decision was taken in the applicant’s absence. Following the quashing of the applicant’s conviction by way of supervisory review the applicant sought to have criminal proceedings instituted against the judges who tried his case in 2003, without success. The applicant also brought civil proceedings seeking to recover damages for his unlawful conviction of 4 July 2003, as upheld on appeal on 18 March 2004. On 13 June 2006 the Chelyabinsk Regional Court in the final instance dismissed his claims. C.     The applicant’s fresh conviction On 8 November 2005 the Kalininskiy District Court of Chelyabinsk again convicted the applicant. On 21 July 2006 the Chelyabisnk Regional Court overturned the judgment of 8 November 2005 on appeal, because the trial court had not respected the applicant’s rights to defence, and remitted the case for a retrial. On 7 February 2007 the Kalininskiy District Court convicted the applicant of sexual abuse and attempted rape and sentenced him to six years six months’ imprisonment. On 7 May 2007 the Chelyabinsk Regional Court upheld the conviction on appeal. D.     Decisions concerning the application of a custodial measure Following the Supreme Court’s decision of 29 April 2005 to remand the applicant in custody, on 27 May 2005 the Kalininskiy District Court of Chelyabinsk scheduled a hearing on the applicant’s case and held that the applicant should remain in custody. The decision was given in the applicant’s absence, and the latter was informed about it only after it had become final. On 12 January 2006 the District Court granted the applicant’s request to restore the time-limit for appeal against the decision of 27   May   2005. However, on 10 October 2006 the Chelyabinsk Regional Court upheld the decision to keep the applicant in detention. In the meantime, on 28 October 2005 the Kalininskiy District Court of Chelyabinsk extended the applicant’s detention until 29 November 2005. The applicant’s appeal against this decision was examined by the Regional Court on 10 October 2006. On 8 November 2005 the Kalininskiy District Court of Chelyabinsk, having convicted the applicant, held that he should remain in custody. On 21 July 2006 the Chelyabinsk Regional Court, having quashed the judgment of 8 November 2005, held that the preventive measure of detention imposed on the applicant should remain unchanged. On 15   August 2006 the Kalininskiy District Court of Chelyabinsk scheduled a hearing on the applicant’s case and held that the applicant should remain in custody. On 31 August 2006 the Chelyabinsk Regional Court upheld the above decision on appeal. On 2 October 2006 Kalininskiy District Court of Chelyabinsk ruled once again that the applicant should remain in custody. On 16 October 2006 the Chelyabinsk Regional Court upheld the above decision on appeal. On 10 November 2006 the Kalininsky District Court held that the preventive measure imposed on the applicant should remain unchanged. On 8   December 2006 the Chelyabinsk Regional Court upheld the above decision on appeal. As indicated above the applicant was convicted by the District Court on 7 February 2007. COMPLAINTS   On 20 April 2004 the applicant dispatched his first letter to the Court in which he complained of an unfair trial. He referred to Article 6 of the Convention. On 21 June 2004 the applicant submitted a completed application form where he complained under Article 6 of the Convention about the alleged unlawfulness of his conviction of 4 July 2003, as upheld on appeal on 18   March 2004. On 19 June 2006 the applicant submitted another application form in which he alleged violation of his rights under Articles 6, 13 and 14 of the Convention in that the domestic authorities had refused to prosecute the judges who tried his case in 2003. On 6 July 2006 the applicant submitted another application form where he complained under Article 6 of the Convention about the dismissal of his claims for damages sustained as a result of his unlawful conviction of 4   July 2003, as upheld on appeal on 18 March 2004. On 15 August 2006 the applicant dispatched a letter headed “preliminary letter” alleging violation of his rights under Article 5 of the Convention. On 4 December 2007 the applicant submitted a completed application form where he complained under Article 5 § 1 that his pre-trial detention had been unlawful, under Article 5 § 4 that the domestic authorities had taken too long to examine his appeals and under Article 5 § 5 that he had not been awarded compensation. He further complained under Article 6 of the Convention that the alleged violations of his rights committed at the stage of the pre-trial investigation had not been fully rectified during his final trial of 7   February 2007. Finally, he complained under Article 3 of Protocol No. 7 about the failure of the domestic authorities to pay him compensation for his allegedly wrongful conviction. THE LAW 1.     The applicant complained under Article 5 § 1 of the Convention that his pre-trial detention had not been lawful. The relevant part of Article   5 reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...” Arguments by the parties The Government submitted that the applicant had raised his complaint under Article 5 § 1 for the first time in his application dated 4   December 2007, and, hence, he had failed to comply with the six-month rule. In the alternative, the Government argued that the applicant’s detention had been extended in full compliance with the domestic law and had not breached the requirements of Article 5 § 1 of the Convention. The applicant argued that his complaint had been lodged on time. He further submitted that the decisions maintaining the custodial measure had been in breach of the requirements of clarity, foreseeability and protection from arbitrariness and had not been made “in accordance with the procedure established by law”. The Court’s assessment In accordance with the established practice of the Court and Rule   47   §   5 of the Rules of Court, the date of the introduction of an application is the date of the first letter indicating an intention to lodge an application and setting out, even summarily, its object. However, where a substantial interval follows before an applicant submits further information about his proposed application or before he returns the application form, the Court may examine the particular circumstances of the case to determine what date should be regarded as the date of introduction with a view to calculating the running of the six month period imposed by Article 35 of the Convention (see Chalkley v. the United Kingdom (dec.), no.   63831/00, 26   September 2002). The Court notes at the outset that on 20 April 2004 the applicant dispatched a first letter to the Court alleging a violation of his right to a fair trial under Article 6 of the Convention. On 21 June 2004 he lodged a completed application form. On 19 June and 6 July 2006 the applicant submitted two additional application forms supplementing his complaints under Article 6. Subsequently, on 15   August 2006 the applicant dispatched a letter to the Court alleging violation of his rights under Article 5 of the Convention. He lodged the completed application form setting out the pertinent facts and complaints and enclosing relevant documents on 4   December 2007. In such circumstances, the Court considers that the interval between the applicant’s letter mentioning the alleged violation under Article   5 and the dispatch of the completed application form to this effect was rather substantial. It therefore finds that the date of 4   December 2007 should be considered as the date of the introduction of the complaints under Article 5 (compare to Barankevich v. Russia (dec.), no.   10519/03, 20   October 2005). The Court further reiterates that, according to Article 35 § 1 of the Convention, it may only deal with the matter within a period of six months from the date on which the final decision was taken. The Court further reiterates that the date of the “final decision” for the purpose of Article   35   §   1 of the Convention in connection with a period of pre-trial detention is the date on which the charge is determined by a court at first instance (see, among other authorities, Daktaras v. Lithuania (dec.), no.   42095/98, 11   January 2000, and Popov v. Russia , no. 26853/04, §   153, 13   July 2006). After that date the applicant’s detention no longer falls within the ambit of Article 5 § 1 (c) of the Convention, but within the scope of Article 5 § 1 (a) of the Convention (see, most recently, Benediktov v. Russia , no. 106/02, § 43, 10   May 2007). The Court observes, therefore, that the applicant’s detention falling within the scope of Article   5   §   1   (c) consisted of four separate periods: (1)   from 25 February 2003, when he was arrested, to his conviction on 4   July 2003; (2) from 27 November 2003, when his conviction was quashed on appeal, until the quashing of the appeal decision by way of supervisory review on 18 February 2004; (3) from 29   April 2005, when the conviction of 4 July 2003 was quashed by way of supervisory review, until the subsequent conviction on 8 November 2005; and (4) from 21   July 2006, when the above conviction was quashed on appeal, until the subsequent conviction on 7 February 2007. Consequently, the six-month time-limit for the purposes of Article 35 § 1 of the Convention in respect of the above periods started to run on 4   July 2003, 18   February 2004, 8   November 2005 and 7   February 2007 respectively. The Court further observes that since the complaints under Article   5 of the Convention were introduced for the first time on 4   December 2007, this part of application has been introduced out of time and must be rejected in accordance with Article   35   §§ 1 and 4 of the Convention. 2.     The applicant further complained under Article 5 § 4 of the Convention that he had been denied the right to a prompt judicial review of the lawfulness of the decisions of 27 May and 28 October 2005 extending his detention on remand. Article 5 § 4 of the Convention reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” Arguments by the parties The Government acknowledged a violation of the applicant’s right under Article 5 § 4 of the Convention to a speedy judicial review of the extension orders of 27 May and 28 October 2005. The applicant took note of the Government’s admission. The Court’s assessment The Court observes that the Regional Court examined the applicant’s appeals against the decisions of 27 May and 28   October 2005 on 10   October 2006. The applicant should have, therefore, brought his complaint before the Court within a period of six months from that date. However, he did not introduce his complaint until 4   December 2007. It follows that this complaint has also been lodged out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 3.     The Court has examined the remainder of the applicant’s complaints. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President