BYKOV v. RUSSIA

PRIMEA SECȚIUNE DECIZIE CU ADMINISIBILITATEA cererii nr. 4378/02 de Anatoliy Petrovich BYOV împotriva Rusiei Curtea Europeană a Drepturilor Omului (prima secțiune), ședința la 7 septembrie 2006 în calitate de Cameră compusă din: Președintele C.L. Rozakis Loucaides Doamna Tulkens Vajić Kovler dna Steiner Hajiyev, judecători și dl S. Nielsen, grefier; Având în vedere cererea depusă la 21 decembrie 2001, având în vedere observațiile prezentate de Guvernul contestat și observațiile prezentate în răspuns de solicitant, după deliberare, hotărăște după cum urmează: Reclamantul, dl Anatoliy Petrovich Bykov, este un național rus, care s-a născut în 1960 și locuiește în Krasnoyarsk. El este reprezentat în fața Curții de către dl G. Padva, avocat practicant la Moscova, dr.

Krauss, profesor de drept la Universitatea Humbolt, Berlin și dl. Pastille, avocat practicant la Berlin. Guvernul contestat este reprezentat de dl P. Laptev, reprezentant al Federației Ruse la Curtea Europeană a Drepturilor Omului. Circumstanțele cazului Faptele cazului, astfel cum au fost prezentate de părțile, pot fi rezumate după cum urmează. Reclamantul a fost în 1997-1999 președintele consiliului de administrație a Plantei de Aluminiu Krasnoyarsk. La momentul arestării sale în octombrie 2000, el a fost un acționar major și un executiv al unei corporații OAO „Krasenergomash-Holding” și un fundator al unor firme afiliate. El a fost, de asemenea, deputat al Adunării Parlamentare Regionale Krasnoyarsk.

În septembrie 2000, reclamantul a ordonat ca V, un om de origine, să ucidă dl S, fostul asociat de afaceri al reclamantului. V nu a respectat ordinul, dar, la 18 septembrie 2000, a raportat reclamantul la Serviciul Federal de Securitate al Federației Ruse (FSB). În ziua următoare, V a înmânat arma pe care a primit-o de la solicitant. Septembrie 2000 Procurorul districtului Severo-Zapadnyy din Moscova a deschis o anchetă penală împotriva reclamantului cu suspiciune de o conspirație la crimă. La 26 și 27 septembrie 2000, FSB și poliția au hotărât să efectueze o operațiune secretă pentru a obține dovezi care ar putea clarifica acuzația de intenție a reclamantului de a ucide S. Ei au intenționat să transmită reclamantului mesajul că asasinarea a avut loc și să examineze modul în care reclamantul va reacționa la raportul V privind îndeplinirea sarcinii.

În septembrie 2000, poliția a înființat o descoperire a doi morți la casa S. Ei au anunțat oficial în mass-media că unul dintre cei ucisi a fost identificat ca S. Un alt om a fost partenerul său de afaceri, dl I. La 3 octombrie 2000 V a venit să vadă reclamantul acasă. El a transportat un dispozitiv de radio-transmitere ascunsă în timp ce un ofițer de poliție din afara a primit și a înregistrat transmisia. În urma instrucțiunilor, V a declarat reclamantului că a efectuat asasinarea și a implicat reclamantul într-o conversație. Ca dovadă a realizării sale, el a dat reclamantului mai multe obiecte împrumutate de la S și I: o copie certificată a unui studiu de fezabilitate a proiectului minier marcat cu un agent chimic special, două ceasuri aparținând S și I și USD 20.

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4378/02 by Anatoliy Petrovich BYKOV against Russia The European Court of Human Rights (First Section), sitting on 7 September 2006 as a Chamber composed of: Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen, Registrar, Having regard to the above application lodged on 21 December 2001, 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 Anatoliy Petrovich Bykov, is a Russian national, who was born in 1960 and lives in Krasnoyarsk.

He is represented before the Court by Mr G. Padva, a lawyer practicing in Moscow, Dr. D. Krauss, Professor of Law at the Humbolt University, Berlin, and Mr J. Pastille, a lawyer practising in Berlin. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. A. The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was in 1997-99 a board chairman of the Krasnoyarsk Aluminium Plant. At the time of his arrest in October 2000 he was a major shareholder and an executive of a corporation OAO “Krasenergomash-Holding” and a founder of a number of affiliated firms.

He was also a deputy of the Krasnoyarsk Regional Parliamentary Assembly. In September 2000 the applicant had allegedly ordered V, a man of his entourage, to kill Mr S, the applicant’s former business associate. V did not comply with the order, but on 18 September 2000 reported the applicant to the Federal Security Service of the Russian Federation (the FSB). On the following day V handed in the gun which he had allegedly received from the applicant. On 21 September 2000 the Prosecutor of the Severo-Zapadnyy District of Moscow opened a criminal investigation against the applicant on suspicion of a conspiracy to murder.

On 26 and 27 September 2000 the FSB and the police decided to conduct a covert operation to obtain evidence which could clarify the allegation of the applicant’s intention to murder S. They intended to convey the message to the applicant that the assassination had taken place and to survey how the applicant would react to V’s report on the completion of the task. On 29 September 2000 the police staged a discovery of two dead men at S’s home. They officially announced in the media that one of those killed had been identified as S. Another man was his business partner, Mr I. On 3 October 2000 V came to see the applicant at home. He carried a hidden radio-transmitting device while a police officer outside received and recorded the transmission.

Following the instructions, V told the applicant that he had carried out the assassination and engaged the applicant in a conversation. As a proof of his accomplishment he handed to the applicant several objects borrowed from S and I: a certified copy of a mining project feasibility study marked with a special chemical agent, two watches belonging to S and I and USD 20,000. At the end of the conversation V took the cash, as suggested by the applicant. The police obtained a 16 minute recording of a dialogue between V and the applicant. On 4 October 2000 the applicant’s house was searched. Several watches were seized, including those belonging to S and I. The chemical examination was conducted which revealed the presence on the applicant’s hands of the chemical agent which had been used to mark the feasibility study.

The applicant was arrested. On 6 October 2000 the Deputy Prosecutor of the Severo-Zapadnyy District of Moscow ordered the applicant’s detention on remand, having found that it was “in accordance with law” and necessary in view of the gravity of the charge and a risk that the applicant would influence the witnesses. Further extensions were ordered on 17 November 2000 (until 21 December 2000) and on 15 December 2000 (until 21 March 2001). The reasons for the continued detention were the gravity of the charge and the risk of influencing the witnesses and obstructing the investigation. The applicant appealed against each of these decisions to the court. On 13 October 2000 the applicant was charged with a conspiracy to murder.

Subsequently the charges were extended, to include a conspiracy for acquisition, possession and dealing with firearms. On 8 December 2000 two appointed expert linguists examined the recording of the applicant’s conversation with V. They found that V showed subordination to the applicant, that the applicant had shown no sign of mistrusting V’s confession to a murder and that he insistently questioned V on the technical details of its execution. They established that V and the applicant had a close relationship and that the applicant played an instructive role in the conversation. On 11 January 2001 the investigation was completed and the applicant was allowed access to the case file. Following the applicant’s appeal, on 26 January 2001 the Lefortovskiy District Court of Moscow confirmed the lawfulness of his detention on remand.

The court referred to the gravity of the charge and noted that this measure was applied in accordance with the law. The applicant brought a further appeal, which was also dismissed by the Moscow City Court. On 12 March 2001 the prosecutor sought the consent of the Krasnoyarsk Regional Parliamentary Assembly to submit the case to the court, as it was supposedly necessary to overcome the applicant’s immunity as a deputy. In view of the forthcoming expiry of the applicant’s term of detention its further extension was ordered by the competent prosecutor, first on 15 March 2001, until 4 April 2001, and then on 21 March 2001, until 4 June 2001. The applicant challenged the extensions before the court.

In reply to the prosecutor’s enquiry, on 10 April 2001 the Krasnoyarsk Regional Parliamentary Assembly objected to the submission of the applicant’s criminal case to the court. On the following day the Deputy Prosecutor General challenged this objection before the Krasnoyarsk Regional Court. On 11 April 2001 the Lefortovskiy District Court of Moscow dismissed the applicant’s claim of immunity and declared that the applicant’s detention until 4 June 2001 was lawful and necessary due to the gravity of the charge. The applicant filed an appeal with the Moscow City Court which was dismissed on 15 May 2001. The appeal instance considered the applicant’s detention lawful and necessary “until the bill of indictment had been submitted or until the applicant’s immunity had been confirmed”.

On 3 May 2001 the Krasnoyarsk Regional Court pronounced a judgment in which it found that the consent of the Krasnoyarsk Regional Parliamentary Assembly was not necessary in order to proceed with the applicant’s criminal case. The applicant appealed to the Supreme Court of the Russian Federation, but on 17 August 2001 the appeal was dismissed on the grounds that the local Assembly’s objection was based on the local legislation which itself was contrary to the Constitution. In the meantime, on 22 May 2001 the Deputy Prosecutor General extended the applicant’s detention on remand until 4 September 2001, still on the grounds of the gravity of the charge and the risk of influencing the witnesses and obstructing the investigation.

On 27 August 2001 the case was submitted to the Tushinskiy District Court of Moscow. From then it was in the court’s competence to authorise the applicant’s continued detention. On 7 September 2001 the Tushinskiy District Court of Moscow scheduled the hearing for 26 September 2001 and authorised the applicant’s further detention without indicating reasons. The applicant challenged the Tushinskiy District Court’s jurisdiction and his continued detention. The Moscow City Court examined and dismissed the applicant’s appeal on 3 October 2001, having upheld his continued detention without elaborating on the reasons. As to the question of jurisdiction, it held that it could not be raised on appeal.

The applicant contested the Tushinskiy District Court’s jurisdiction by a separate motion filed on 5 October 2001, and during the court hearing on 22 October 2001. He requested a transfer of the case to the Krasnoyarsk Regional Court which allegedly had jurisdiction. On the latter date the Tushinskiy District Court declined jurisdiction, but in favour of another court, the Meshchanskiy District Court of Moscow, having established that the venue of the attempted murder lay within that territory. On 21 December 2001 the Meshchanskiy District Court of Moscow scheduled the hearing for 4 January 2002 and authorised the applicant’s further detention, invoking no reasons. It again reviewed the lawfulness of the applicant’s detention on 4 January 2002 but found it still necessary due to the gravity of the charges and the “circumstances of the case”.

The applicant’s appeal to the Moscow City Court was dismissed on 15 January 2002. The applicant’s other application for release was examined on 23 January 2002 and, as before, the Meshchanskiy District Court of Moscow refused the applicant’s release citing the gravity of the charge, the risks of fleeing the trial and influencing the witnesses. On 19 June 2002 the Meshchanskiy District Court of Moscow examined the charges against the applicant. The applicant pleaded not guilty to the charges and contested the court’s jurisdiction. At the trial he also challenged the admissibility of the recording of his conversation with V and of all other evidence obtained through the covert operation. He alleged that the police interference had been unlawful and that he had been induced into self-incrimination.

Furthermore, he claimed that the recording involved unauthorised intrusion into his premises. He contested the interpretation of the recording by the experts and alleged that nothing in his dialogue with V disclosed his prior knowledge of the murder conspiracy. During the trial the court rejected the applicant’s objection to the covert operation and admitted as lawfully obtained the recording and its transcript, the linguistic expert report, V’s testimonies, the evidence showing that the applicant had accepted the feasibility study and the watches from V and the witness testimonies confirming the existence of a conflict between the applicant and S. The court refused to admit as evidence the official records of the search at the applicant’s home because the officers who conducted the search had not been covered by the authorisation.

Nevertheless it dismissed the argument that there had been an unauthorised intrusion into the applicant’s premises, having found that the applicant had shown no objections to V’s visit. The court also dismissed the allegation that it lacked jurisdiction holding that the place of the alleged conspiracy for murder lay within its district, and therefore it was competent to examine the case. On the same day, having examined the above evidence, the court found the applicant guilty on both counts, sentenced him to six and a half years’ imprisonment and conditionally released him on a five years’ probation. The applicant appealed against the judgment on the grounds of lack of jurisdiction and incorrect assessment of evidence and the witnesses’ testimonies.

He specifically challenged the admissibility of the evidence obtained through the covert operation. On 1 October 2002 the Moscow City Court upheld the applicant’s conviction. It confirmed that the Meshchanskiy District Court of Moscow, and not a court in Krasnoyarsk, had territorial jurisdiction over the case. The place of the crime was found to be Moscow, where the conspiracy had been brought to an end at the moment when V reported to the police. It also dismissed the applicant’s challenge to the admissibility of evidence. On 19 December 2002 the Deputy President of the Moscow City Court rejected the applicant’s petition for supervisory review. On 21 April 2003 a judge of the Moscow City Court rejected the applicant’s petition for supervisory review filed in accordance with the new procedural legislation.

On 26 March 2004 the applicant filed another petition for supervisory review, which was granted. On 22 June 2004 the Supreme Court of the Russian Federation examined the applicant’s case in supervisory proceedings. It modified the judgment of 19 June 2002 and the appeal decision of 1 October 2002 having redefined the legal qualification of one of the offences committed by the applicant. It found the applicant guilty of an “incitement to commit a crime involving a murder”, and not a “conspiracy to murder”. The rest of the judgment, including the sentence, remained unchanged.

Relevant domestic law The Federal Law on Operative Investigative Measures of 12 August 1995 no. 144-FZ provided in so far as relevant as follows: Section 6. Operative Investigative Measures In carrying out investigation the following measures can be taken: ... 9. control of postal, telegraphic and other communications; 10. telephone interception; 11. collection of data from technical channels of communication; ... 14. operative experiment… The operative investigative measures involving control of postal, telegraphic and other communications, telephone interception through [telecommunication companies], collection of data from technical channels of communication are to be carried our by technical means of federal security service and agencies of interior in accordance with acts and agreements signed between the agencies involved…

Section 8. Conditions of conduct of operative investigative measures The operative investigative measures involving interference with the constitutional right to privacy of postal, telegraphic and other communications, transmitted by means of wire or mail services, or with the privacy of home may be taken, subject to a judicial decision, following the receipt of the information concerning: 1. an appearance of a committed or ongoing offence, or a conspiracy of an offence the investigation of which is mandatory; 2. persons conspiring, or committing, or having committed an offence the investigation of which is mandatory; ... The operative experiment may only be conducted for the detection, prevention, interruption and investigation of a serious crime, or for the identification of persons preparing, committing or having committed it…

Section 9. Grounds and procedure of judicial authorisation of operative investigative measures involving the interference with constitutional rights of individuals Examination of requests for the conduct of measures involving interference with the constitutional right to privacy of correspondence, telephone, postal, telegraphic and other communications, transmitted by means of wire or mail services, or with the right to privacy of home falls within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located. The request must be examined immediately by a single judge; the examination of the request may not be refused…

The judge examining the request decides whether to authorise the conduct of measures involving interference with the above constitutional right, or to refuse authorisation, indicating reasons… Section 11. Making use of information obtained through operative investigative measures The information gathered as a result of operative investigative measures may be used for the preparation and the conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating collection, evaluation and assessment of evidence… COMPLAINTS The applicant complained under Article 5 § 1 of the Convention that his initial arrest was unlawful as it had not been authorised by the Krasnoyarsk Regional Parliamentary Assembly and that it was not based on a reasonable suspicion.

The applicant alleged that his pre-trial detention was excessively long and not justified within the meaning of Article 5 § 3 of the Convention. The applicant complained under Article 5 § 4 of the Convention that he could not effectively challenge his detention. He invokes in particular the succinct and repetitive character of the courts’ decisions relating to his detention and the lack of factual support to their conclusions. The applicant complained under Article 6 § 1 of the Convention that the Meshchanskiy District Court of Moscow was not competent to determine a criminal charge against him and thus did not constitute a “tribunal established by law” for the purpose of this provision.

The applicant further complained under Article 6 § 1 of the Convention that the criminal proceedings which led to his conviction were unfair because the principal evidence against him derived form a set up covert operation, which violated his right to silence and the privilege against self-incrimination. The applicant claimed that the recording of his conversation with V and other evidence connected with the covert operation should have been excluded by the domestic courts as obtained unlawfully and in defiance of his will. He also claimed that the recording was misinterpreted and was unreliable as evidence. He also complained under Article 6 § 2 about the violation of the right to silence and the privilege against self-incrimination.

The applicant finally complained under Article 8 of the Convention that the covert operation involved the authorities’ unlawful intrusion into his premises and a breach of privacy of communication. THE LAW 1. The applicant complained that his pre-trial detention was excessively long and that its extensions were given without indication of relevant and sufficient reasons. He relies on Article 5 § 3 of the Convention which provides 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.” The Government considered that the applicant’s detention had not been too long and argued that the investigation of his case took time because of its complexity and large volume.

They also claimed that the applicant could flee the prosecution, influence witnesses and obstruct justice, given his personality. The applicant maintained his complaint claiming that the reasons given for the extensions were mere declarations unsupported by any reasoning or factual information. He stressed that the grounds were not elaborated or changed in the subsequent extensions. The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

No other ground for declaring it inadmissible has been established. 2. The applicant complained that the trial against him was unfair because he had been tricked by the police into making self-incriminating statements in his conversation with V and because the court admitted the record of this conversation as evidence at trial. This complaint falls to be examined under Article 6 § 1 which provides in so far as relevant as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government contested the applicant’s allegations. They considered that the investigation had been conducted lawfully and with due respect to the rights of the accused.

They pointed out that the applicant’s conviction had been based on the admissible evidence, some of which unrelated to the covert operation. They also claimed that the right to silence had no relevance before the applicant had been charged with a criminal offence or forced to give evidence under oath, whereby this constitutional guarantee would have its pertinence. The applicant disagreed with the Government. He considered that he should have enjoyed the right to silence and the privilege against self-incrimination from the moment that he fell under suspicion of having been involved in a crime. He alleged that his conversation with V had in fact constituted a concealed interrogation, unaccompanied by any procedural guarantees.

He furthermore denied that the record of this conversation had any probative value and claimed that it should not have been admitted as evidence at trial. The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 3. The applicant complained that the police conducting the covert operation unlawfully intruded into his home and interfered with his private life and correspondence by intercepting and recording his conversation with V in violation of Article 8 of the Convention which reads as follows: “1.

Everyone has the right to respect for his private and family life, his home and his correspondence. 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.” The Government maintained that the covert operation, and in particular the interception and recording of the applicant’s conversation with V had been conducted in accordance with law. They alleged that no judicial authorisation had been needed for this kind of investigative measure because it is not included in the list of such measures given in Section 8 of the Law on Operative Investigative Measures.

This provision requires a judicial decision where a measure at stake interferes with communications transmitted by means of wire channels or mail services, none of which were engaged in the covert operation. They also denied that there had been an intrusion into the applicant’s home since V had been let in voluntarily. They further claimed that in the circumstances of the case the covert operation was indispensable because without interception of the applicant’s conversation with V it would be impossible to find out and prove his true intentions, and, ultimately, investigate the alleged crime. The applicant maintained, on the contrary, that the covert operation involved an unlawful and unjustified interference with his right to respect for his private life and home.

He maintained that his home had been unlawfully intruded and contested the Government’s argument that he had not objected to V’s entry because his consent did not extend to accepting the police agent on his premises. He also claimed that recording his conversation with V required prior judicial authorisation. The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court 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 admissible, without prejudging the merits, the applicant’s complaint under Articles 5 § 3 of the Convention, his complaint under Articles 6 § 1 of the Convention concerning the covert operation and the use of the results thereof in ensuing criminal proceedings, and his complaint under Article 8 of the Convention; Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President