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case of Boyko v/s Russia

    Application No. 42259 of 07

    Decided On, 20 January 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT BRANKO LUBARDA
    By, THE HONOURABLE MR. JUSTICE PERE PASTOR VILANOVA & THE HONOURABLE MR. JUSTICE GEORGIOS A. SERGHIDES

    For the Appearing Parties: ---------------



Judgment Text

PROCEDURE

1. The case originated in an application (no. 42259/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Vasiliy Vadimovich Boyko ("the applicant"), on 18 September 2007.

2. The applicant was represented by Ms K. Kostromina, a lawyer practising in Moscow. The Russian Government ("the Government") were initially represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The applicant complained, in particular, that his pre-trial detention had been excessively long, that detention orders had been issued in his absence and that his appeals against detention orders had not been examined speedily; that he had been prevented from meeting his relatives and a priest while in detention and that there had been hindrance to his right to individual petition to the Court.

4. On 4 September 2012 the above complaints were communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1959 and lives in Moscow.

6. The facts of the cases, as submitted by the parties, may be summarised as follows.

A. The applicant's arrest and detention

7. On 24 November 2006 the applicant, the owner and CEO of a large dairy producer, was charged with large-scale fraud and money laundering and summoned for questioning. He did not show up for a few initial interviews and the investigator put his name on the list of fugitives from justice.

8. On 26 January 2007 the investigator, acting on the information that the applicant had fled abroad, asked the Ostankinskiy District Court in Moscow for a detention order.

9. The detention hearing was fixed for 1 February 2007. The applicant's lawyers had been notified of the date and time of the hearing on the previous day but did not show up and asked the investigator to postpone the examination of his application because they were busy in other proceedings. The District Court appointed legal-aid counsel to represent the absent applicant, proceeded with the hearing and issued the detention order, referring to the fact of the applicant's absconding to Ukraine and from there to Hungary, the gravity of the

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charges against him and the risk of interference with the investigation. On 9 February 2007 the applicant's lawyers appealed.

10. On 15 February 2007 the applicant was arrested in Moscow.

11. On 19 March 2007 the Moscow City Court heard an appeal against the detention order. The applicant and his lawyers were present at the hearing. Considering that the risks of flight and obstruction of the investigation were sufficiently established, the City Court upheld the detention order.

12. The applicant's detention was later extended on nine occasions. The applicant appealed against each of the detention orders, lodging statements of appeal within two to ten days of the hearing date. It took the appeal courts between twenty-six and sixty days to examine the complaints.

13. The most recent detention order of 25 July 2008 was quashed on appeal by the Supreme Court on 2 October 2008. The Supreme Court considered that there was no evidence substantiating the risk of absconding or interfering with justice. The investigation had been pending for over two years of which the applicant had spent more than a year and a half in custody. The Supreme Court concluded that that the proceedings had been unreasonably long and ordered the applicant's release on bail.

B. Restrictions on family visits and meetings with priests

14. While in custody, the applicant asked the investigator to be allowed to receive visits from his mother, wife and children and also pastoral visits from two Orthodox priests, A. and S.

15. With the investigator's consent, the applicant's mother and daughters visited him on two occasions in April and May 2007. In August and September 2007 the investigator interviewed his wife and mother as potential witnesses but they refused to testify, invoking the constitutional guarantee against self-incrimination. The investigator refused the applicant's subsequent applications to see his family, stating that such visits could "have a negative influence on the conduct of the investigation". As to the Orthodox priests, on 29 March 2007 the investigator invoked the same ground to refuse a visit from S. On 30 August 2007 the investigator once again refused a pastoral visit, stating that the applicant should see the prison chaplain instead.

16. Counsel for the applicant applied for a judicial review of visiting restrictions.

17. On 24 October 2007 and 6 February 2008 the Tverskoy District Court pronounced the refusal of pastoral visits to be lawful and justified, holding that the investigator had full discretion to determine whether or not such visits ran counter to the interests of the investigation. On 18 June 2008 the City Court upheld the latter decision on appeal, holding that a restriction on religious rights was an inherent consequence of the pre-trial detention.

18. As regards family visits, on 30 October 2007 the Tverskoy District Court granted the applicant's complaint in part, finding as follows:

(a) restrictions on visits from the applicant's wife and mother in the period after the investigator had interviewed them as witnesses in the criminal proceedings had been lawful and within the discretion of the investigator;

(b) restrictions on visits from the wife and mother in the preceding period had not been justified but no relief could be afforded to the applicant because they had already been granted the status of witnesses and the investigator might wish to interview them again at some point in time;

(c) restrictions on visits from the applicant's children were not justified and the investigator had an obligation to remedy a breach of the applicant's rights.

C. Restrictions on the applicant's meetings with the representative before the Court

19. On 10 December 2007 the applicant's representative before the Court, Ms Kostromina, asked the director of the remand prison to allow her to see the applicant and provided credentials confirming her status. Her application was referred to the investigator.

20. On 24 January 2008 Ms Kostromina lodged a complaint with the Preobrazhenskiy District Court claiming that the prison director should have authorised her visit without any restrictions, on the basis of Article 34 of the Convention guaranteeing unhindered access of an applicant to his representative.

21. On 15 February 2008 the District Court dismissed the complaint, finding that Ms Kostromina was not the applicant's counsel in the domestic criminal proceedings and could not therefore visit him. On 6 May 2008 the Moscow City Court upheld that decision on appeal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 3 OF THE CONVENTION

22. The applicant complained that his pre-trial detention had been excessively long. This complaint falls to be examined under Article 5 3 of the Convention, which reads as follows:

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial."

23. The Government submitted that the decisions to remand the applicant in custody and to extend his detention had been well-reasoned and justified.

A. Admissibility

24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25. The relevant principles relating to the assessment of pre-trial detention from the standpoint of its compliance with Article 5 3 of the Convention have been summarised in the case of Zherebin v. Russia (no. 51445/09, 49-54, 24 March 2016).

26. The Court takes note of the Supreme Court's findings as to an excessive length of the criminal proceedings and the domestic courts' failure to substantiate the risk of obstruction (see paragraph 13 above). The Court sees no reason to find otherwise. It therefore concludes that the applicant's pre-trial detention was not based on "relevant and sufficient" reasons and was also excessively long.

27. There has accordingly been a violation of Article 5 3 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 5 4 OF THE CONVENTION

28. The applicant complained that his detention had been authorised in his and his lawyers' absence and that the domestic courts had failed to carry out a speedy review of his detention. The complaints fall to be examined under Article 5 4 of the Convention, which 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."

29. The Government submitted that the applicant and his lawyers had contributed to the delays in the examination of their appeals against the detention orders. In particular, they challenged the authenticity of the hearing record, lodged multiple statements of appeal, and insisted on the applicant's personal participation in the appeal hearings.

A. Admissibility

30. As regards the complaint that the initial detention order had been issued in the absence of the applicant and his lawyers, the Court observes that, by leaving Russia, the applicant forfeited the opportunity to take part in those proceedings. His lawyers had been given advance notification of the hearing date and time and could, but did not, ask the court for an adjournment. In so far as the court appointed legal aid counsel to represent the applicant in those proceedings and as there is no evidence that counsel did not discharge his duties in good faith, those proceedings satisfied the requirements of Article 5 4 of the Convention (see Snyatovskiy v. Russia, no. 10341/07, 59-60, 13 December 2016). Accordingly, this part of the complaint is manifestly ill-founded and must be dismissed pursuant to Article 35 3 and 4 of the Convention.

31. The Court further notes that complaint concerning the appeal hearing of 26 December 2007 was first raised before the Court on 6 September 2008, that is to say more than six months later. It follows that this complaint was introduced out of time and must be rejected in accordance with Article 35 1 and 4 of the Convention.

32. As regards the remainder of this complaint, the Court notes that it is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

33. The Court recalls that it has already found a violation of Article 5 4 of the Convention in a number of cases against Russia, where, for instance, the proceedings by which the lawfulness of applicants' detention was decided lasted thirty-four (see Manerov v. Russia, no. 49848/10, 43-47, 5 January 2016), twenty-seven (see Pichugin v. Russia, no. 38623/03, 154-56, 23 October 2012), twenty (see Butusov v. Russia, no. 7923/04, 32-35, 22 December 2009) or twenty-six days (see Mamedova v. Russia, no. 7064/05, 96, 1 June 2006), stressing that their entire duration was attributable to the authorities.

34. Even making due allowance for the Government's claim that the applicant had somehow delayed the examination of his appeals, the delays attributable to the authorities were still in excess of twenty-six days on each occasion. The Court finds that the appeal proceedings on review of the lawfulness of the applicant's detention did not comply with the "speediness" requirement under Article 5 4 of the Convention.

35. There has accordingly been a violation of that provision.

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

36. The applicant complained that he was not allowed to see his family. He relied on Article 8 of the Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

37. The Government submitted that the restrictions on the applicant's meetings with his wife and mother had been lawful and justified by reason of their status as witnesses in the criminal proceedings against the applicant.

A. Admissibility

38. The Court considers that, in so far as the District Court acknowledged that the restriction on the applicant's meetings with his children had been unlawful and ordered the investigator to remedy the violation (see paragraph 18 above), this amounted in essence to an acknowledgment of a breach of the applicant's right to respect for his family life and constituted sufficient redress in the circumstances of the case. The applicant can no longer be regarded as a "victim" in respect of this part of the complaint which is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 3 (a) and must be rejected in accordance with Article 35 4.

39. As regards the restrictions on visits from the applicant's mother and wife which the District Court upheld as having been lawful and refused to grant any relief to the applicant, the Court finds that this part of the complaint is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

40. The Court reiterates that rejection of applications for family visits or limitations on their frequency constitute an interference with the applicant's rights under Article 8 of the Convention (see Messina v. Italy (no. 2), no. 25498/94, 62, ECHR 2000-X, and Moiseyev v. Russia, no. 62936/00, 247, 9 October 2008).

41. The Court has previously held that section 18 of the Russian Pre-trial Detention Act − which provides for the discretionary right of the investigator to authorise up to two visits per month − falls short of the requirements of "quality of law" and foreseeability because it confers unfettered discretion on the investigator in the matter of prison visits but does not define the circumstances in which leave to visit can be refused, for how long and on what grounds (see Vlasov v. Russia, no. 78146/01, 126, 12 June 2008, and Moiseyev, cited above, 250).

42. The domestic court censured an abusive use of the investigator's discretion in respect of visits by the applicant's mother and wife during an initial phase of the investigation (see paragraph 18 above, point (b)). Nevertheless, it endorsed the absolute nature of the investigator's discretion in the later period (see point (c)) and refused to subject his decision classifying the mother and wife as witnesses to a judicial scrutiny. Nor did it attempt to perform a balancing act weighing the needs of the investigation against the applicant's right to respect for his private life. The text of the District Court's judgment makes it apparent that considerations relating to the applicant's family life played no part in the decision-making process.

43. The Court accordingly finds that, by failing to carry out the required balancing exercise, the domestic authorities did not discharge their duty to give relevant and sufficient reasons for the interference.

44. There has therefore been a violation of Article 8 of the Convention on account of refusal of visits from the applicant's mother and wife.

IV. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

45. The applicant complained that the investigator's refusal to allow him to see priests A. and S. had been in breach of Article 9 of the Convention which reads as follows:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."

46. The Government submitted that the investigator had full discretion to decide whether or not such visits should be allowed. Moreover, an Orthodox priest was present on the premises of the remand prison and detainees were able to ask for a meeting with him.

A. Admissibility

47. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

48. The Court reiterates that the refusal of a pastoral visit constitutes interference with the prisoner's right to freedom of religion (see Mozer v. the Republic of Moldova and Russia [GC], no. 11138/10, 197, ECHR 2016). The availability of prison chaplains does not alter this conclusion but may be taken into account in the assessment of the proportionality of the interference.

49. The first requirement is that the inference must be "prescribed by law". As the Court has found above in its analysis under Article 8 of the Convention, the investigator's absolute discretion in the matter of prison visits deprived the applicant of the minimum degree of protection against arbitrariness or abuse to which citizens are entitled under the rule of law in a democratic society. The present complaint illustrates the manner in which that unlimited discretion can be, and has been, abused. The investigator refused a pastoral visit on the ground that it would negatively affect the course of the investigation without explaining why it was so or assessing the impact which that decision would have on the applicant's right to freedom of religion. The courts did nothing to censure the abuse and endorsed the investigator's unlimited discretion. In these circumstances, the Court finds that the legal framework governing the conditions for pastoral visits fell short of the requirements of "quality of law".

50. Accordingly, there has been a violation of Article 9 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION

51. The applicant finally complained that Ms Kostromina, his representative before the Court, had not been permitted to visit him in the remand prison to prepare his application to the Court. He relied on Article 34 of the Convention, which provides as follows:

"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."

52. The Government submitted that Ms Kostormina had not been allowed to see the applicant because she had not been authorised to act as his counsel in the criminal proceedings.

53. The Court has already found a breach of Article 34 of the Convention in a similar case of Zakharkin v. Russia (cited above, 157-�160), where a refusal of an applicant's visit by his representative before the Court flowed from a deficiency in the domestic law. In the present case, Ms Kostormina was not allowed to visit the applicant in detention by reference to the same legal provisions.

54. The Court therefore concludes that the respondent State has failed to comply with its obligations under Article 34 of the Convention in the present case.

VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

55. Lastly, the Court has examined the other complaints submitted by the applicant and, having regard to all the material in its possession and in so far as the complaints fall within the Court's competence, it finds that they 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 manifestly ill-founded, pursuant to Article 35 3 (a) and 4 of the Convention.

VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

56. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

57. The applicant claimed a total sum of 12,000,000 euros (EUR) in respect of pecuniary and non-pecuniary damage, seeking to be compensated, in particular, for the loss of business opportunity.

58. The Government submitted that the finding of a violation would constitute sufficient just satisfaction.

59. The applicant did not submit any evidence showing the existence of a causal link between the violations found and the alleged losses. The Court therefore rejects his claim in the relevant part. On the other hand, making its assessment on an equitable basis, it awards the applicant EUR 7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable.

60. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the absence of relevant and sufficient reasons for the applicant's pre-trial detention, a lack of speedy judicial review of the detention orders, save for the detention order of 19 October 2007, and the restrictions on the visits from the applicant's mother, wife, and priests admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 3 of the Convention;

3. Holds that there has been a violation of Article 5 4 of the Convention;

4. Holds that there has been a violation of Article 8 of the Convention;

5. Holds that there has been a violation of Article 9 of the Convention;

6. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;

7. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 7,500 (seven thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

8. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 20 February 2018, pursuant to Rule 77 2 and 3 of the Rules of Court.
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