EUROPEAN COURT OF HUMAN RIGHTS
CASE OF KORKIN v. RUSSIA
(Application no. 48416/09)
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Korkin v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Nielsen, Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
- The case originated in an application (no. 48416/09) 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 Sergey Eduardovich Korkin (“the applicant”), on 27 August 2009.
- The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
- The applicant alleged, in particular, that he had been transported to the court-house and back in cramped conditions; that his pre-trial detention from 20 March to 10 April 2009 had not been authorised by a court order; and that his pre-trial detention and criminal proceedings against him had been unreasonably long.
- On 3 November 2011 the application was communicated to the Government.
- The circumstances of the case
- The applicant was born in 1973 and lives in Moscow.
- Criminal proceedings against the applicant
- In 2003 the prosecutor’s office opened a criminal investigation into a series of fraudulent property transactions carried out by an organised group. On 14 April 2005 the applicant was arrested on suspicion of involvement in these activities.
- On 15 April 2005 the Ostankinskiy District Court of Moscow considered the investigator’s request to remand the applicant in custody during the investigation. The investigator argued that the applicant was suspected of having committed serious offences and was unemployed. He further alleged that the applicant might abscond or reoffend. Lastly, he referred to the applicant’s attempt to prevent witness Sh. from meeting with the investigator. The court granted the investigator’s request, noting as follows:
“…the court takes into consideration that [the applicant] is suspected of having committed a lucrative crime which entails a custodial sentence exceeding ten years’ imprisonment, that he is not employed, and, as a result, he has no means of subsistence. The investigator’s knowledge of the reliable information that [the applicant] has put pressure on witnesses…, convinces the court that, if [released], he might abscond, continue his criminal activities or otherwise interfere with the administration of the criminal proceedings…”
- On 22 April 2005 the applicant was charged with fraud. On 10 June 2005 the District Court extended the applicant’s detention until 14 August 2005. The court stated as follows:
“[The applicant] is charged with a serious offence committed by an organised criminal group. The reasons underlying the court’s decision to detain the applicant pending investigation still pertain. The court has accordingly grounds to believe that, if released, given that [the applicant] is a member of an organised criminal group, certain members of which are still at liberty and continue their criminal activities and interfere in any possible way with the investigation, [the applicant] will continue his criminal activities too or interfere with the criminal investigation…”
- On 2 August 2005 the District Court extended the applicant’s detention until 14 November 2005 reiterating verbatim the reasoning in the previous court order.
- On 7 November 2005 the District Court extended the applicant’s detention until 14 February 2006. The court reasoned as follows:
“There are no grounds to [release the applicant] because the circumstances justifying [his] detention still pertain. As prescribed by law, the court cannot discuss the [applicant’s] guilt and, when deciding on [the investigator’s request], the court is unable to discuss whether the extension of the investigation is justified and… the court, when considering the request to extend the pre-trial detention, cannot decide to apply another preventive measure.”
- On 14 December 2005 the Moscow City Court upheld the decision of 7 November 2005 on appeal.
- On 8 February 2006 the District Court extended the applicant’s detention until 14 April 2006. With reference to the seriousness of the charges, the court stated that “if released, [the applicant] might abscond or otherwise interfere with the administration of justice”.
- On 13 April 2006 the Moscow City Court extended the pre-trial detention in respect of the applicant and S. until 14 July 2006. Referring to the seriousness of the charges, the court discerned no grounds to release the defendants. On 19 July 2006 the Supreme Court of the Russian Federation upheld the decision of 13 April 2006 on appeal.
- On 12 July 2006 the City Court extended the pre-trial detention in respect of the applicant, Kar. and S. until 14 October 2006. The court noted as follows:
“It appears from the evidence submitted that S., [the applicant] and Kar. were detained pending investigation in view of the seriousness of the charges, the particular complexity of the case under investigation because of the numerous counts of [fraud], the significant number of defendants, and the possibility for them to put pressure on witnesses or to otherwise interfere with the administration of justice.
These circumstances still pertain today. The detention is still necessary and there are no grounds to release S., [the applicant] and Kar.”
- On 5 October 2006 the City Court extended the applicant’s detention until 14 January 2007. The court stated:
“In deciding to extend [the applicant’s] pre-trial detention, the court takes into account his medical condition, that he resides permanently in Moscow, that he has no prior convictions and that he has no family ties.
Furthermore, [the court] notes that when detaining [the applicant] pending trial, the court considered that, if released, he might abscond, continue his criminal activities or otherwise interfere with the administration of justice, regard being had to the facts that he was unemployed [and] had no means of subsistence. [Furthermore] according to the reliable information available to the investigating authorities, [the applicant] has put pressure on witnesses. Accordingly, the investigator has correctly specified that [the applicant], if released, might abscond or continue his criminal activities, especially given the number of people under investigation. Some of them are detained and some of them have not yet been identified. [The applicant], if released, would have an opportunity to interfere with the administration of justice.”
- On 9 October and 14 December 2006 the Supreme Court upheld on appeal the decisions of 12 July and 5 October 2006 respectively.
- On 24 August 2006 the applicant was charged with multiple counts of fraud, money laundering and criminal threatening including death threats.
- On 27 December 2006 the City Court extended the pre-trial detention in respect of the applicant, Kar. and S. until 14 April 2007 with the following reasons:
“The court takes into account that all the defendants reside in Moscow and have family ties… and the [applicant’s] medical condition…. Nevertheless, the court considers that the information concerning the character of all three defendants was taken into account at the time of their detention pending trial. To date the circumstances justifying their detention have not changed or ceased to exist. Furthermore, all three defendants are charged with particularly serious and numerous offences. Apart from the three defendants, there are a great number of people prosecuted on the same charges, and they are not in detention. The present case concerns several counts [of fraud] and the court therefore accepts the investigator’s argument that, if released, S., [the applicant] and Kar. would have a real opportunity to interfere with the administration of justice… [and/or] they might continue their criminal activities or abscond. There is no medical proof submitted that the defendants are unfit for detention in remand prisons.”
- On 13 March 2007 the Supreme Court upheld the decision of 27 December 2006 on appeal.
- On 30 March 2007 the City Court extended the applicant’s detention until 14 June 2007. The court reiterated the reasoning of its previous detention orders. The applicant appealed alleging that the maximum period of pre-trial detention had expired and that he should be released. On 21 May 2007 the Supreme Court upheld the order of 30 March 2007 on appeal. The court noted that the applicant should be detained given that the other defendants had not finished reading the case file.
- On 4 June 2007 the City Court noted that the applicant had not finished reading the case file and extended his detention until 14 July 2007. The court noted as follows:
“Even though [the applicant] had no previous convictions prior to his arrest, has a permanent place of residence, and is supporting his elderly mother who suffers from a number of serious diseases, he is charged with a number of serious… offences which entail a custodial sentence…
In the court’s view, the above information concerning the [applicant’s] character and the seriousness of the charges are sufficient to justify the [applicant’s] detention. If released, he might abscond to prevent the transfer of the case file to the trial court, given that he has not finished reading the case file. He might also continue his criminal activities and influence the course of the trial…”
- On 20 June 2007 the Simonovskiy District Court of Moscow received the case file. It comprised 190 volumes and concerned seven defendants, including the applicant, and over 400 witnesses. The case was assigned to Judge P.
- On 27 June 2007 the District Court scheduled the preliminary hearing of the case for 11 July 2007. The court also noted that the defendants should remain in custody pending trial.
- On 11 July 2007 the District Court held a preliminary hearing in the case and scheduled the trial for 23 July 2007. The court further reasoned that the applicant and four other defendants should remain in custody pending trial given that they were charged with serious offences and might abscond, continue their criminal activities and/or threaten the witnesses and other parties to the proceedings or otherwise interfere with the administration of justice. On 26 November 2007 the City Court upheld the decision of 11 July 2007 on appeal.
- On 25 July 2007 the Supreme Court upheld the decision of 4 June 2007 on appeal.
- On 10 December 2007 the case was re-assigned to Judge N. The applicant did not receive any written notification thereof.
- On 11 December 2007 the District Court extended the pre-trial detention in respect of the applicant and four other defendants until 20 March 2008. The court stated as follows:
“When deciding to extend [the defendants’] pre-trial detention, the court considers that, if released, [they might] put pressure on the parties involved in the criminal proceedings [or] interfere with the establishment of the truth.”
- On 18 March 2008 the District Court extended the applicant’s detention with reference to the seriousness of the charges until 20 June 2008. It issued one court order in respect of five defendants, including the applicant. On 12 May 2008 the City Court upheld the decision of 18 March 2008 on appeal.
- On 20 June 2008 the District Court extended the applicant’s detention until 20 September 2008. The court noted as follows:
“When deciding to extend the [defendants’] detention,… the court, in addition to the information concerning the [defendants’] character, takes into account the fact that [they], if released, might put pressure on… witnesses or otherwise interfere with the establishment of the truth.”
- On 6 August 2008 the City Court quashed the decision of 20 June 2008 on appeal. The court stated that, in contravention of the applicable rules of criminal procedure, the decision in question was taken in the absence of the defendants’ counsel.
- On 12 August, 16 September and 16 December 2008 the District Court extended the defendants’ detention until 20 September, 20 December 2008 and 20 March 2009 respectively. The court reiterated verbatim the reasoning contained in the court order of 20 June 2008.
- On an unspecified date the trial ended and the judge retired into the deliberations room for deliberations and drafting of the judgment. On 20 March 2009 the judge left the deliberations room and started the public pronouncement of the judgment in the case. The introductory part of the judgment (page 1) indicated that the date of its delivery was 20 March 2009. Its text comprised 260 pages. On 10 April 2009 the judge completed the delivery of the judgment. The operative part of the judgment (pages 258 – 60) specified the sentence imposed on each of the defendants and indicated the preventive measures applicable to them before the judgment came into force. As regards the applicant, the judgment indicated that “the preventive measure (custody) imposed earlier should remain unchanged”. According to the applicant, the operative part of the judgment was pronounced by the judge on 10 April 2009. The applicant was acquitted of one count of fraud and found guilty of four counts of fraud and two counts of money laundering and sentenced to nine years’ imprisonment.
- On 13 April 2009 the City Court upheld the decision of 16 December 2008 on appeal.
- On an unspecified date the applicant lodged an appeal against the judgment of 20 March 2009. He did not challenge the lawfulness of his detention from 20 March to 10 April 2009 before the appeal court. On 21 October 2009 the City Court upheld the applicant’s conviction on appeal.
- Conditions of detention
- Detention in a temporary detention ward and remand prisons
- From 14 to 19 July 2005 the applicant was detained temporarily in a detention cell at the police station. According to the applicant, metal sheets on the windows prevented access to daylight, and an electric light was constantly on. He further submitted that the bathroom offered no privacy and that it was not possible to take a shower.
- From 19 July 2005 to 18 October 2008 the applicant was detained in remand prison no. IZ-77/5 in Moscow. He was allegedly held throughout in severely overcrowded cells: the number of beds was insufficient and he had to take turns with other inmates to sleep; the toilet offered no privacy; the inmates had to burn paper to cover the bad smell emanating from the toilet; and the quality of the food was very low.
- From 18 October 2008 to an unspecified date in 2009 the applicant was detained in remand prison no. IZ-77/6 in Moscow. Whereas the applicant submitted that thirty persons who were detained together had to take turns to eat; that there was a queue to use the toilet and that hot water was only available once a week, he considered the conditions of detention during the said period to be satisfactory.
- Confinement at the court-house
- On the days of the court hearing during the period between 20 June 2007 and June 2008 the applicant was detained at the Simonovskiy District Court. According to the applicant, the holding cell was poorly lit and ventilated; all the cells were severely overcrowded and there was no free access to a toilet.
- In June 2008 the District Court moved to a new building. The applicant did not describe the conditions of his detention there, noting only that they had improved.
- Conditions of transport
(a) Description submitted by the Government
- According to the Government, the prison vans used to transport the inmates to and from the court-house fully complied with sanitary and hygiene standards. They were all equipped with ventilation, heating and lighting systems. The seating capacity of the prison vans was as follows:
|Type of the prison van||Seating capacity|
|UAZ-3741||4 – 5 inmates|
(b) Description submitted by the applicant
- According to the applicant, on the days of the court hearings in 2007 – 09 he was transported from the remand prison to the court-house and back in a prison van with two compartments, each measuring 1.5 x 2 m, which held twelve people each.
- The natural ventilation of the van through the hatches was insufficient and it was difficult to breathe. In the summer it was stiflingly hot inside the van. The vans had no windows or internal lighting.
- The van collected inmates from different prisons and made several stops at different court-houses and remand prisons. As a result, the applicant spent more than six hours in the van for each day in court.
- Medical assistance
- The applicant submitted that he suffered from hypertension, hepatitis, cholecystitis, pancreatitis, gastrobulbitis, diathesis, psoriasis and psychopathy. On 13 September 2006 the applicant sustained a hypertensive crisis. On an unspecified date he was diagnosed with cerebro-asthenic syndrome.
- According to the applicant, while in detention, he received no proper medical assistance.
- In July to August 2006 and November to December 2008 the applicant underwent treatment in a prison hospital. The treatment was, in the applicant’s view, not effective.
- Alleged ill-treatment
- According to the applicant, on numerous occasions he was subjected to psychological pressure during questioning. Following the applicant’s arrest, his mother was not allowed to see him until 2008.
- The applicant submitted that on 31 March 2005 he was brought to the investigator’s office for questioning. The police officers who were present there allegedly beat the applicant up causing him concussion and numerous bruises.
- On 13 July 2006 the prosecutor’s office refused to institute criminal proceedings against the alleged perpetrators. The applicant did not take any further action in this respect.
- Compensation proceedings
- On 1 November 2010 the applicant brought a civil claim seeking compensation due to, in his view, the unreasonable length of the criminal proceedings against him.
- On 8 April 2011 the Moscow City Court considered and dismissed the applicant’s claims. The court stated, in particular, that the provisions of the new law on compensation were not applicable to the applicant given that he had been convicted prior to the enactment of said law. The applicant appealed.
- On 31 August 2011 the appellate division of the City Court considered the applicant’s appeal. The court noted that on 8 April 2011 it had considered the applicant’s case in his absence and quashed the judgment. It further considered it possible to examine the applicant’s claims for compensation on the merits and render a new judgment. The City Court dismissed the applicant’s claims in full, reasoning as follows:
“It follows from the circumstances of the case that [the criminal proceedings against the applicant] lasted four years six months and eight days.
The [applicant’s] criminal case was legally and factually complex. Six defendants were charged with serious and particularly serious offences: S. and Sh. were charged with six counts [of fraud]; K. was charged with seven counts [of fraud]; [the applicant] was charged with four counts [of fraud]; F., Kh. and D. were charged with three counts [of fraud]… The case… was particularly complex given that the crimes were committed by an organised group. The defendants, whose guilt had been established in the judgment of 20 March 2009, had had knowledge of the law. In order to achieve their criminal goal, they had worked out a scheme comprising several stages which made it difficult to detect and record the evidence, and to establish the circumstances of the case that affected the overall length of the investigation and trial stages of the proceedings.
The [applicant’s] behaviour had also had an impact on the length of the proceedings. He repeatedly lodged requests with the authorities asking, inter alia, for additional interviews and changes of the time of interviews.
Furthermore, it was incumbent on the authorities, during the investigation stage, to establish the whereabouts of and arrest suspects S., A. and N., and to ask for legal assistance from a foreign state [Ukraine]…
There were no substantial or unreasonable periods of inactivity in the conduct of the investigation proceedings… The authorities’ failure to comply with the statutory time-limits does not amount, as such, to the violation of the [applicant’s] right to a trial within a reasonable time.
It follows that there has been no violation of the [applicant’s] right to investigation within a reasonable time (the investigation stage lasted two years, two months and five days).
The judicial proceedings lasted two years, four months and one day…
The length of the judicial proceedings was justified in view of the factual and legal complexity of the case, the great number of defendants and witnesses to be questioned, and the behaviour of the parties to the proceedings. The hearing of the case was adjourned for a short period (less than two weeks). The trial court took the necessary steps to summon and question witnesses… the case was promptly forwarded to the appeal court…
In view the above, the court considers that the length of the judicial proceedings against [the applicant] was reasonable.
It follows that the criminal proceedings [against the applicant] have complied with the reasonable time criterion and that the length of the criminal proceedings has not been excessive…
Regard being had to the fact that the length of [the criminal proceedings against the applicant] has been reasonable and that there was no violation of the [applicant’s] right to a trial within a reasonable time, the court does not discern any grounds to grant the [applicant’s] claim for compensation for the violation of his right to a trial within a reasonable time.”
- Relevant domestic law and practice
- Preventive measures
- “Preventive measures” include an undertaking not to leave town, a statement of guarantee, bail, house arrest and remand in custody (Russian Code of Criminal Procedure (CCrP), Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (CCrP Article 112).
- When deciding on a preventive measure, the competent authority is required to consider whether there are “sufficient grounds to believe” that the accused would abscond, reoffend, threaten the witnesses or other parties to the proceedings, destroy evidence or otherwise interfere with the administration of justice (CCrP Article 97). It must also take into account the seriousness of the charges, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (CCrP Article 99).
- Detention may be ordered by a court in respect of a person suspected of or charged with a criminal offence punishable by more than three years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (CCrP Article 108 § 1).
- Adoption and delivery of the judgment
- Once the court completes the deliberations and prepares the text of the judgment, its members leave the deliberations room and the president pronounces the judgment. The court signs the judgment and indicates the date of its delivery (CCrP Article 310). The date indicated in the judgment is the date when the court leaves the deliberations room and starts pronouncing the judgment. The date when the court finishes pronouncing the judgment shall be take into consideration for the purposes of calculation of the time-limit for lodging an appeal against the judgment (Appeal judgment of the Supreme Court of the Russian Federation no. 9-O05-12 of 29 April 2005).
- Detention pending appeal proceedings
- Arrest, remand in custody and detention shall be authorised by a court order (Constitution of the Russian Federation, Article 22 § 2).
- If the trial court finds a defendant guilty, when delivering the judgment in the case, it should decide on the issue of the defendant’s detention for the period before the judgment becomes final. The decision should be set out in the operative part of the judgment (CCrP Article 308 § 1 (10)).
III. Relevant documents of the Council of Europe on the conditions of prisoners’ transport
- The relevant provisions of international documents concerning the conditions of prisoners’ transport are set out in the judgment of M.S. v. Russia, no. 8589/08, §§ 64 – 65, 10 July 2014.
- Alleged violation of Article 3 of the Convention
- The applicant complained about the alleged ill-treatment in custody and the conditions of his detention on remand pending the investigation and trial. He also complained about the conditions of his transport to and from the courthouse. He referred to Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
- In respect of the latter complaint, the Government submitted that the conditions in which the applicant had been transported were in compliance with Article 3 of the Convention. The prison vans were never filled beyond the capacity for which they had been designed. The ventilation, heating and lighting were in good working order and in compliance with applicable technical standards. The vans were cleaned daily and disinfected on a weekly basis. Referring to the failure on the applicant’s part to indicate the specific dates of transportation, they claimed that it was not possible to provide detailed information as regards each journey to and from the court-house.
62. The applicant maintained his complaint.