CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 avril 2008

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display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid }     FIRST SECTION     CASE OF FURSENKO v. RUSSIA     (Application no. 26386/02)     JUDGMENT       STRASBOURG   24 April 2008       FINAL     24/07/2008     This judgment may be subject to editorial revision. In the case of Fursenko v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 27 March 2008, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 26386/02) 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 Petr Vsevolodovich Fursenko (“the applicant”), on 17 June 2002. The applicant died after he had introduced the application. However, his mother, Ms Raisa Andreyevna Varlamova, expressed her wish to pursue the application. 2.     The applicant was represented by Ms K. Moskalenko, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Mr   P.   Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. 3.     The applicant alleged, in particular, that his pre-trial detention was unlawful and unreasonably long and that he could not challenge the lawfulness of his detention before a court. 4.     By a decision of 9 February 2006 the Court declared the application partly admissible. 5.     The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other’s observations. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1968 and lived in Tver. A.     Institution of criminal proceedings against the applicant 7.     On 18 July 2000 the investigating authorities instituted criminal proceedings against the applicant and another person. They suspected them of drug trafficking. On the same date the applicant was detained. 8.     On 21 July 2000 he was released. 9.     On 23 November 2000 the criminal proceedings against the applicant were severed from the proceedings against the other accused. 10.     On 24 November 2000 a public prosecutor charged the applicant in   absentia and ordered his arrest and detention. The applicant was charged with the purchase of 0.5263 grams of heroin on two occasions and its subsequent sale. 11.     On 27 November 2000 the applicant was put on a list of persons wanted by the police. 12.     On 14 April 2001 the applicant was arrested and taken into custody on the basis of the prosecutor’s order of 24 November 2000. The order to take him into custody was served on the applicant but he refused to countersign it. B.     The first complaint concerning the applicant’s detention 13.     On 25 April 2001 the applicant lodged a complaint with a court about his arrest on 14   April 2001. Although a letter of 28 May 2001 from the court confirmed that a judge had received the complaint, it appears that the complaint was not examined. C.     The second complaint concerning the applicant’s detention 14.     On an unspecified date the applicant’s mother filed a complaint claiming that his detention was unlawful. 15.     On 6 May 2001 the prosecutor of the Moskovskiy District of Tver dismissed the complaint on the following grounds: “The preventive measure was applied to [Mr] Fursenko on valid grounds. At present there are no reasons to change the preventive measure.” D.     Service of the charges and referral of the bill of indictment to the court 16.     On 11 May 2001, 27 days after the arrest, the investigating authorities served the charges on the applicant and questioned him. 17.     Having finished the investigation, on 14 May 2001 the investigating authorities referred the bill of indictment to the Moskovskiy District Court of Tver for trial. 18.     On 23 May 2001 the Moskovskiy District Court of Tver joined the criminal proceedings against the applicant to criminal proceedings against another accused and ordered that the preventive measure should remain unchanged. E.     Proceedings before the court and the third complaint concerning the applicant’s detention 19.     On 18 June 2001, in the course of the first court hearing, the applicant asked for leave to appoint his mother as a representative. The application was granted. 20.     In the hearing the applicant also asked for the case to be referred back for additional investigation, and for his release pending trial. He also complained of a number of procedural irregularities. The Moskovskiy District Court of Tver did not grant either of the applications. The court held, inter alia : “In the course of the hearing [Mr] Fursenko applied for the case to be referred back for additional investigation, ... asked for the preventive measure to be modified and for an obligation not to leave his place of residence to be imposed instead of detention... [Mr] Fursenko is charged with a particularly grave offence; ... the preventive measure is applied having regard to the personality of [Mr] Fursenko, who was previously convicted of a grave offence; no exceptional circumstances preventing [Mr] Fursenko from being isolated were presented to the court. ... Breaches of the terms for questioning the accused committed at the preliminary investigation may not be accepted as a ground for altering the preventive measure in respect of [Mr] Fursenko, who is charged with a particularly grave offence.” 21.     The applicant appealed on the grounds, inter alia , that the preventive measure had been applied to him unlawfully, that he had not been notified about the institution of criminal proceedings against him, that he had never sought to evade the investigation and that he had been unlawfully put on the list of persons wanted by the police. 22.     On 19 July 2001 the Tver Regional Court upheld on appeal the ruling of 18   June   2001. The court ruled: “The preventive measure in respect of [Mr] Fursenko has been applied in compliance with [the law], taking into consideration all the circumstances of the case... No circumstances preventing keeping him in custody can be found.” 23.     On 24 September 2001 the Moskovskiy District Court of Tver joined the proceedings against the applicant and another accused to criminal proceedings against the applicant concerning another offence. In the same ruling the court ordered the applicant to remain in detention. F.     The fourth complaint concerning the applicant’s detention 24.     The applicant submitted that on unspecified dates between 13 July and 21 November 2001 he had complained that his continuing detention was not justified because no hearings had been held during this period. However, the complaints were not examined by the courts. G.     Referral of the case for additional investigation and the fifth complaint concerning the applicant’s detention 25.     On 24 December 2001 the Moskovskiy District Court of Tver, acting pursuant to Article 232 of the RSFSR Code of Criminal Procedure, referred the case back for additional investigation in order to reformulate the charges and ordered the applicant to remain in detention. The court did not give reasons for its decision on this matter. At the same hearing the applicant challenged the judge. The challenge was dismissed. 26.     The Government submitted that subsequently a prosecutor authorised the applicant’s continued detention. 27.     On 2 January 2002 the applicant filed a complaint against the decision of 24   December 2001. He claimed that the preventive measure had been applied to him in breach of procedural law. 28.     On 14 February 2002 the Tver Regional Court dismissed the complaint. The court held: “[The accused] are charged with a particularly grave offence. During the preliminary investigation the preventive measure... was applied to them ... on valid grounds. ... [The court] ... resolved the question concerning the preventive measure in accordance with [the law]. There are no grounds to change the preventive measure... for [the accused].” 29.     On 18 February 2002 the case was in fact referred to the investigative authorities for additional investigation. 30.     On 26 February 2002 the prosecutor extended the term of the applicant’s detention until 26 March 2002. H.     The sixth complaint concerning the applicant’s detention and the alleged failure to examine previous complaints 31.     On an unspecified date the applicant’s mother complained to the prosecutor about the applicant’s detention. 32.     In his reply of 13 March 2002 the prosecutor stated: “...On 14 April 2001 the investigation of the criminal case was renewed because of the arrest of [Mr] Fursenko. In breach of [the law], the charges were served on [Mr]   Fursenko only on 14 May 2001. ... The said breach of the law is not an unconditional ground for release...” 33.     On 28 February 2002 the applicant’s mother complained to the court about the failure to examine the applicant’s complaints about his detention. 34.     In its reply of 25 March 2002 the Moskovskiy District Court of Tver stated: “The complaint concerning the lawfulness of [Mr] Fursenko’s arrest was received by the court on 28 April 2001. On 3 May 2001 the court requested [the investigating authorities] to provide [relevant] documents. Since the documents were not received, a second request was made on 22 May 2001... Since on 28 May 2001 the case was submitted to the court for consideration on the merits, the complaint was transmitted to the judge... When this issue was decided ... detention as a preventive measure remained unchanged. After the case had been referred back for additional investigation, [Mr] Fursenko again filed a complaint concerning the preventive measure. The court received the complaint on 27 February 2002, on 5 March 2002 necessary documents were requested and they were received on 13 March 2002. On 20 March 2002 the hearing concerning the complaint was adjourned because the accused requested the assistance of a lawyer.” I.     The seventh complaint concerning the applicant’s detention 35.     On 28 February 2002 the applicant again lodged a complaint concerning the alleged unlawfulness of his detention and applied for release pending trial on the grounds, inter alia , that he had never sought to evade investigation. 36.     From 18 to 30 March 2002 the applicant went on hunger strike demanding that the authorities review the lawfulness of his arrest. 37.     On 26 March 2002 the case was submitted to the court for trial. On the same date the Moskovskiy District Court of Tver, acting pursuant to Articles 220-1 and 220-2 of the RSFSR Code of Criminal Procedure, dismissed the applicant’s complaint concerning the unlawfulness of his detention and application for release pending trial, relying on the gravity of the offences with which he was charged. The court noted that on 26   February 2002 the prosecutor had extended the term of the applicant’s detention until 26 March 2002. It also ordered that “the preventive measure should remain unchanged”.   The applicant appealed. 38.     On 4 June 2002 the Tver Regional Court quashed the ruling of 26   March   2002 and referred the issue of the applicant’s detention to another judge for a fresh examination. The court found that the applicant’s lawyer had not been notified about the hearing, which constituted a violation of the applicant’s defence rights, and instructed the lower court to take into consideration the applicant’s arguments. At the same time the court ordered the applicant to remain in detention on the ground that the ruling of 26   March 2002 had been quashed for procedural reasons. 39.     On 15 July 2002 the applicant again went on hunger strike until 6   August   2002, demanding that the authorities review the lawfulness of his detention. It appears that he amended his complaint, alleging, inter alia , that his detention between 14 April and 14 May 2001 and between 26 February and 25 March 2002 had been unlawful. 40.     On 26 July 2002 the Moskovskiy District Court of Tver, acting pursuant to Article 125 of the Russian Federation Code of Criminal Procedure, held that the applicant’s detention had been lawful: “[Mr] Fursenko is charged with two offences ... for which only punishment in the form of deprivation of liberty is provided. The application of the preventive measure and the fixing of the terms of [Mr Fursenko’s] detention between 14 April and 14   May   2001 and between 26 February and 25 March 2002 complied with the provisions of the legislation on criminal procedure ... [I]nformation about the personality of the accused, previously convicted of a grave offence, and the nature of the offence he is charged with, was taken into consideration. Therefore, the preventive measure ... was applied to [Mr] Fursenko lawfully and on valid grounds, as were the extension of [his] detention between 14   April and 14 May 2001 and between 26 February and 25 March 2002 by the prosecutor of the Moskovskiy District, who acted within his powers. No exceptional circumstances pleading against placing [Mr] Fursenko in detention were submitted to the court.” 41.     The applicant appealed, insisting that his detention was unlawful. 42.     On an unspecified date the applicant’s mother complained to the court about the failure to examine the applicant’s complaint about his detention. 43.     In its reply of 31 July 2002 the Moskovskiy District Court of Tver stated: “...[T]he complaint was examined on 26 July 2002. The length of the proceedings concerning the complaint was due to circumstances beyond the control of the court: after the documents were received from the Tver Regional Court on 13 June 2002, on 18   June 2002 a request for documents was sent [to the investigating authorities]... On 26 June 2002 the hearing was adjourned following [Mr] Fursenko’s request for further documents; on 28 June 2002 this request was sent to the investigative authorities. Despite our numerous reminders and demands by the judge for immediate compliance with that request, the response was received by the court only on 19 July 2002.” 44.     On an unspecified date the applicant asked for leave to study the file. On 29 August 2002 the Tver Regional Court granted the application and returned the case file to the Moskovskiy District Court of Tver. The applicant later applied for the hearing to be held in his presence. On 19   September 2002 the Tver Regional Court granted the application and scheduled the next hearing for 8 October 2002. 45.     On 8 October 2002 the Tver Regional Court quashed the ruling of 26   July 2002 and remitted the case to the District Court for a fresh examination by a different bench. The court held: “[The Moskovskiy District Court of Tver] dismissed [Mr] Fursenko’s complaint, referring to [the gravity of the charges against him]... It also took into consideration the information about the personality of the accused, i.e. his previous conviction for a grave offence. Therefore, the court only addressed the grounds for application of the preventive measure to [Mr] Fursenko. However, in accordance with the provisions of Article 220-2 of the RSFSR Code of Criminal Procedure a court has to assess the lawfulness and reasonableness of decisions concerning detention as a preventive measure taken by the investigating authorities. Lawfulness of an arrest means compliance with all [relevant] provisions of the legislation on criminal procedure. In his complaint the applicant indicated breaches of the law committed in procedural documents concerning the application of detention as a preventive measure. However, the court did not give any reasons as to why it did not accept the applicant’s arguments. In the court’s decision there is no analysis and assessment of the lawfulness of the application of detention as a preventive measure in respect of [Mr]   Fursenko... Accordingly, the court’s decision should be set aside as unlawful, and the case referred back for a fresh ... examination, [in which] the court should ... examine the circumstances of the case, address [Mr] Fursenko’s arguments and decide strictly in accordance with the law the issue of the lawfulness and reasonableness of [Mr   Fursenko’s detention] and duly reason its decision. The criminal case against [Mr] Fursenko has been referred to the Moskovskiy District Court of Tver for consideration on the merits...” 46.     On 31 October 2002 the Moskovskiy District Court of Tver discontinued the proceedings concerning the lawfulness of the applicant’s detention. It held that it was no longer competent to deal with the complaints lodged during the pre-trial proceedings since the preliminary investigation had been completed and on 5 August 2002 the applicant’s case had been sent for trial. The applicant appealed. 47.     On 26 November 2002 the Tver Regional Court dismissed the applicant’s appeal and upheld the decision of 31 October 2002. The court held: “[Mr] Fursenko complained about the decision of the investigative authorities to apply detention as a preventive measure in respect of him during the pre-trial proceedings. However, as follows from the material submitted to the appeal court, [the applicant’s criminal case] is now before the Moskovskiy District Court and ... the court has decided to leave the preventive measure in respect of [Mr] Fursenko unchanged. In these circumstances the judge had grounds to discontinue the proceedings concerning [Mr] Fursenko’s complaint..., because after the referral of the case together with the bill of indictment to the [trial] court, it is the [latter] that... reviews procedural decisions and other material relating to the pre-trial proceedings. At the same time the [trial] court reviews the decisions of the investigative authorities relating to limitations of citizens’ rights and freedoms upon complaints lodged by the interested parties.” J.     Referral of the case for additional investigation and the eighth complaint concerning the applicant’s detention 48.     On 2 April 2002 the Moskovskiy District Court of Tver referred the case back for additional investigation on the ground that the applicant and his co-accused had not been familiarised with the material in the case file. The court ordered the applicant to remain in detention; however, it did not state reasons for its decision on this point. 49.     The applicant lodged a complaint against the decision. 50.     On 25 June 2002 the Tver Regional Court amended the wording of the ruling of 2   April   2002 in the part relating to the referral of the case for additional investigation and upheld it in the remaining part. The court held: “... [The accused] are charged with a particularly grave offence. The preventive measure... was applied to them at the stage of the preliminary investigation and remained unchanged when the case was referred back for additional investigation... in accordance with [the law].” K.     Extension of the applicant’s detention 51.     The Government submitted that on 8 July 2002 the prosecutor had accepted the case file for further investigation. 52.     On 12 July 2002 the Moskovskiy District Court of Tver extended the applicant’s detention until 6 August 2002. The court noted: “...The investigator applied for extension of the detention in respect of both accused until 8   August 2002, taking into account the fact that [the accused] are charged with a particularly grave offence... might seek to evade the investigation and trial and interfere with the establishment of the truth”. 53.     The court further held: “... [The accused] are charged with an offence categorised as particularly grave and dangerous, only deprivation of liberty is provided as a punishment for this offence, the application [by the investigator for extension of the detention] set out reasons for extending the detention, and the information about the personalities of the accused has been taken into consideration.” 54.     On 29 October 2002 the Tver Regional Court quashed the ruling of 12   July 2002 on the grounds that it was poorly reasoned. At the same time the court held: “Since the criminal case against [the applicant] has been referred to the Moskovskiy District Court of Tver to be considered on the merits and since in accordance with [the law], when a criminal case is submitted to a court it has to make a decision concerning the preventive measure – that is, whether it has to be changed – the present proceedings should be terminated.” L.     The ninth and tenth complaints concerning the applicant’s detention 55.     The applicant’s mother lodged complaints with the court concerning the applicant’s detention and, inter alia , the decision of 29   October   2002. The complaints were dismissed on 5 and 28   December   2002. M.     Directions hearing and order for the applicant to remain in custody 56.     On 5 August 2002 the applicant’s case had been sent for trial. 57.     On 8 August 2002, at the directions hearing, the Moskovskiy District Court of Tver ordered the applicant to remain in custody. 58.     On 4 December 2002 the Moskovskiy District Court of Tver set the applicant’s case down for hearing from 26 to 30 December 2002 and ordered him to remain in detention. The applicant appealed against the decision in the part relating to the appointment of the hearing. 59.     On 30 January 2003 the Moskovskiy District Court of Tver extended the term of the applicant’s detention until 5 May 2003 on the ground of the gravity of the offence he was charged with. N.     Proceedings against the remand prison 60.     On an unspecified date the applicant instituted proceedings against the remand prison, claiming that his detention was unlawful. 61.     On 25 November 2002 the Moskovskiy District Court of Tver dismissed the appeal. The court held: “By [the investigator]’s order of 24 November 2000 detention as a preventive measure was applied to [Mr] Fursenko, that order being served on [Mr] Fursenko on 14   April 2001. ... [Mr] Fursenko is accused of [criminal] offences... Since no decisions to change the preventive measure in respect of [Mr] Fursenko have been taken by a competent agency, there were no grounds to release him.” 62.     On 13 February 2003 the Tver Regional Court upheld the judgment. O.     Trial proceedings 63.     On 14 February 2003 the Moskovskiy District Court of Tver acquitted the applicant, who was released on the same day. 64.     On 19 June 2003 the Tver Regional Court quashed the acquittal on appeal and remitted the case to the District Court for a fresh examination by a different bench. 65.     On 5 September 2003 the Moskovskiy District Court of Tver scheduled the hearing in the applicant’s case for 8 to 13 October 2003 and imposed on him an undertaking not to leave his place of residence without permission as a preventive measure. II.     RELEVANT DOMESTIC LAW 1.     The 1960 Code of Criminal Procedure, in force until 1   July   2002 (old CCrP). Article 11 (1). Personal inviolability “No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor’s order. [...]” Article 89 (1). Application of measures of restraint “When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the inquirer, the investigator, the prosecutor or the court may apply one of the following measures of restraint in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or taking into custody. [...]” Article 90. Application of a preventive measure to a suspect “In exceptional instances, a preventive measure may be applied to a suspect who has not been charged. In such a case, charges must be brought against the suspect within ten days after a preventive measure is applied. If no charges are brought within the period specified, the preventive measure shall be cancelled.” Article 91. Circumstances to be considered in applying a preventive measure “When the need for application of a preventive measure is considered and the type of the measure is chosen... the circumstances to be taken into account shall include... the gravity of the charges brought and the personality of the suspect or the accused, occupation, age, health, family status and other circumstances.” Article 92. Order and ruling on the application of a preventive measure “A preventive measure shall be applied under an order made by an inquirer, an investigator, a prosecutor, or a reasoned ruling rendered by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure. The person concerned shall be informed of the order or ruling and at the same time the person shall be provided with explanations concerning the procedure for bringing complaint against the preventive measure applied. A copy of the order or the ruling on the application of the preventive measure shall be immediately handed to the person concerned.” Article 96. Taking into custody “Taking into in custody as a preventive measure shall be effected in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of liberty for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of liberty for a period of less than one year is prescribed by law. [...]” Article 97. Time-limits for pre-trial detention “A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three   months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension up to six months from the day of taking into custody may be effected only in cases of special complexity by a prosecutor of a subject of the Russian Federation ... An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing grave or very grave criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to one year and a half) [...]. If the court remits for a new investigation a case in respect of which the time-limits for the applicant’s [detention during the investigation] have expired, and, in the circumstances, the preventive measure cannot be modified, the prosecutor ... shall extend the term of the detention within one month from the receipt of the case. Further extension of the term [of detention] shall be effected taking into account the time the accused had spent in detention before the case was sent for trial, in accordance with the procedure and within the limits provided for by parts one and two of the present article [...].” Article 101. Cancellation or modification of a preventive measure “A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the circumstances of the case so require. The cancellation or modification of a preventive measure shall be effected by a reasoned order of the person carrying out the inquiry, the investigator or the prosecutor, or by a reasoned court decision after the case has been transferred to a court. The cancellation or modification, by the inquirer or by the investigator, of a preventive measure chosen on the prosecutor’s instructions shall be permissible only with the prosecutor’s approval.” Article 220-1. Appeals against detention orders and extension of custody periods   “Complaints about a decision of the body conducting the inquiry, the investigator or the prosecutor to apply detention as a preventive measure shall be brought before a court by the detainee, his counsel or his legal representative directly or via the person conducting the inquiry, the investigator or the prosecutor[...].” Article 220-2. Judicial review of lawfulness and validity of detention orders and extension of custody periods   “...The judge must review the lawfulness of the arrest or of the extension of detention ... within three days after receipt of documents confirming the lawfulness and validity of the detention as a preventive measure. Judicial review of the lawfulness and validity of the arrest or of the extension of detention shall be conducted in a hearing in camera with the participation of the prosecutor, the counsel, if he participates in the proceedings, and the legal representative of the detainee. The judge shall summon to the hearing the detainee. Failure of the persons duly notified about the [hearing] to appear without valid reasons shall not prevent the judicial review. Judicial review of the lawfulness and validity of the arrest or of the extension of detention in the absence of the detainee is allowed only in exceptional circumstances when the detainee applied for the complaint to be examined in his absence or of his own motion refuses to participate in the hearing [...].” Article 222. Issues to be decided when appointing a hearing “When appointing a hearing a judge shall decide in respect of each accused: ...5) whether the preventive measure applied to the accused is subject to modification or cancellation . [...]” Article 232. Remittal of the case for additional investigation “...When the case is remitted for additional investigation the judge has to decide on the application of a preventive measure in respect of the accused.” 2.     The 2001 Code of Criminal Procedure, in force from 1 July 2002 (new CCrP). Article 97. Grounds for applying a preventive measure “1. An inquirer, an investigator, a prosecutor or a court within their competence may apply to an accused one of the measures of restraint provided for in the present Code when there are sufficient grounds to believe that an accused: 1) will evade an inquiry, preliminary investigation or trial; 2) may continue criminal activity; 3) may threaten a witness or other participants of the criminal proceedings, destroy evidence or otherwise interfere with the course of the criminal proceedings. 2. A preventive measure may also be applied in order to secure enforcement of the sentence.” Article 98. Preventive measures “Preventive measures are: 1)   obligation not to leave one’s place of residence; 2)     personal guarantee; 3)     supervision of the commandment of a military unit; 4)     supervision over a minor accused; 5)     bail; 6)     home confinement; 7)     taking into custody.” Article 99. Circumstances to be considered in applying a preventive measure “When the need for application of a preventive measure is considered and the type of the measure is chosen... the circumstances to be taken into account shall include the gravity of the charges brought, the personality of the accused, his age, health, family status, occupation and other circumstances.” Article 101. Order and ruling on the application of a preventive measure “1. A preventive measure shall be chosen under an order made by an inquirer, an investigator, a prosecutor or a judge, or a ruling rendered by a court, which shall specify the offence of which the person is suspected or accused and the grounds for application of the preventive measure. 2. A copy of the order or decision on the application of the preventive measure shall be handed to the person concerned as well as to his lawyer or legal representative upon their request. 3. At the same time the procedure for appealing against the application of the preventive measure... shall be explained to the person concerned.” Article 108. Taking into in custody “1. Taking into in custody as a preventive measure shall be effected pursuant to a court decision in respect of a person suspected or accused of committing criminal offences for which the law prescribes a penalty in the form of deprivation of liberty for a period of more than two years when application of a milder preventive measure is impossible. ...the ruling of a judge shall specify concrete factual circumstances which constitute the grounds for such decision. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of liberty for a period of less than two years is prescribed by law, provided that: 1) a suspect or an accused does not have a permanent residence within the territory of the Russian Federation; 2) his identity has not been discovered; 3) he has violated a previously applied preventive measure; 4) he has fled from the investigative authorities or from the court. [...] 3. When it is necessary to apply taking into custody as a preventive measure a prosecutor or an investigator or an inquirer with the prosecutor’s consent file an application to that effect with the court. The application shall set out the reasons and grounds which make it necessary to take a suspect or an accused into custody and which make application of another preventive measure impossible. Materials supporting the grounds set out in the application shall be attached. If the application is filed in respect of a [detained] suspect, the order [on detention] and the indicated materials shall be submitted to a judge not later than 8 hours before the expiration of the term of detention. 4. [The application] shall be considered by a single judge ... with the participation of the suspect or the accused, a prosecutor, a ‘counsel if the latter participates in the criminal case, either at the place of preliminary investigation or at the place of detention of the accused within 8 hours after the receipt of the materials by the court. [...] 7. Having examined the application a judge shall deliver one of the following rulings: 1) to [take in custody] the suspect or the accused; 2) to refuse the application; 3) to extend the term of detention. Provided the detention is recognised by the court as lawful and well-grounded, the term of detention may be extended up to 72 hours from the moment of the delivery of a court decision on application of one of the parties for the submission of additional evidence with regard to the sufficiency or insufficiency of the grounds for... taking into custody. The date and time until which the term of detention is extended shall be indicated in the ruling on extension of the term of detention. [...] 10. If the question of the application of taking into custody as a preventive measure in respect of the defendant arises in court, the court shall decide on this issue upon application by a party or of its own motion, issuing an order or ruling on the point. 11. A ruling of a judge on application or refusal to apply taking into custody as a preventive measure is subject to appeal within 3 days after its delivery. The appeal court shall decide [on the appeal] within 3 days of the date when it is lodged. [...] Article 109. Time-limits for pre-trial detention “1. A period of detention during the investigation of criminal offences may not last longer than two months. 2. If it is impossible to complete the preliminary investigation within 2 months and if there are no grounds for modification or cancellation of the preventive measure this time-limit may be extended by up to six   months by a judge of a district or garrison court of the relevant level according to the procedure provided in Article 108 of the present Code. A further extension of this term up to 12 months may be effected in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case and provided there are grounds for application of this preventive measure by a judge of the same court upon application of the investigator, filed with the consent of a prosecutor of a subject of the Russian Federation or a military prosecutor of equal status. 3. A term of detention may be extended beyond 12 months and up to 18 months only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [a judge]on application by an investigator filed with the consent of the Prosecutor General of the Russian Federation or his deputy. 4. Further extension of the time-limit is not allowed. [...] Article 110. Cancellation or modification of a preventive measure “1. A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the grounds for application of a preventive measure... change. 2. The cancellation or modification of a preventive measure shall be effected by an order of the person carrying out the inquiry, the investigator, the prosecutor or the judge or by a court decision. 3. A preventive measure applied at the pre-trial stage by the prosecutor or by the investigator or the inquirer upon his’ written instructions may be cancelled or changed only with the prosecutor’s approval.” Article 123. Right to appeal “Actions (omissions) and decisions of the agency conducting the inquiry, the inquirer, the investigator, the prosecutor and the court may be appealed against according to the procedure provided in the present Code by the participants in the criminal proceedings and by other persons to the extent that the procedural actions carried out and procedural decisions taken affect their interests.” Article 124. Procedure for consideration of a complaint by a prosecutor “1. A prosecutor shall consider a complaint within three days of the date when it is lodged. In exceptional circumstances, when in order to check the complaint it is necessary to obtain on demand additional materials or to take other measures, a complaint may be considered within 10 days, notice of which shall be given to the complainant. [...]” Article 125. Judicial procedure for consideration of complaints “1. Orders of the inquirer, the investigator or the prosecutor about the refusal to institute criminal proceedings, or about termination of a case or their other orders and actions (omissions) which may infringe upon constitutional rights and freedoms of the participants in the criminal proceedings or impede access to justice for citizens may be appealed against to a district court according to the place where the preliminary investigation is conducted. [...] 3. The judge shall check the lawfulness and grounds of the actions (omissions) and decisions of the inquirer, the investigator, the prosecutor not later than 5 days after the receipt of the complaint in a hearing with the participation of the complainant and his counsel, a legal representative or representative if they participate in the criminal case, of other persons whose interests are directly affected by the action (omission) or decision appealed against and also with the participation of the prosecutor. [...] Article 255. Decision concerning the preventive measure “1. In the course of a judicial hearing the court may apply, change or cancel a preventive measure in respect of the defendant. 2. If taking into custody is applied to the defendant as a preventive measure, the term of detention from the date when the criminal case was submitted to the court and until the sentence is delivered may not exceed 6 months except for the cases provided for in paragraph 3 of this Article. 3. ...[U]pon expiry of 6 months from the date when the criminal case was submitted the court may extend the term of detention... only in respect of a criminal case concerning grave and particularly grave criminal offences and for not more than 3   months each time. 4. A court decision on extension of the term of ‘detention of the defendant may be appealed against. The appeal does not suspend the criminal proceedings.” 3.     Ruling of the Constitutional Court no. 4-P of 22 March 2005 66.     On 22 March 2005 the Constitutional Court of the Russian Federation adopted Ruling no. 4-P in respect of a complaint concerning the de facto extension of pre-trial detention after the transmittal of the case-file from the prosecution authorities to the trial court. It found that the challenged provisions of the new CCrP complied with the Constitution of the Russian Federation. However, their practical interpretation by the courts may have contradicted their constitutional meaning. In part 3.2. of the Ruling the Constitutional Court held: “The second part of Article 22 of the Constitution of the Russian Federation provides that [...] the detention is permitted only on the basis of a court order [...]. Consequently, if the term