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FIRST
SECTION
CASE OF
SILIN v. RUSSIA
(Application
no. 3947/03)
JUDGMENT
STRASBOURG
24 April
2008
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 Silin 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 that date:
PROCEDURE
- The
case originated in an application (no. 3947/03) 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 Vladimir Igorevich Silin
(“the applicant”), on 27 January 2003.
- The
applicant was represented by Mr V. Zherebenkov, a lawyer
practising in Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the
duration of his pre-trial detention and the criminal proceedings
against him had been excessive.
- By
a decision of 7 September 2006, the Court declared the application
partly admissible.
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1970 and lives in Moscow.
- On
28 August 2000 the applicant was detained on suspicion of having
committed a crime punishable under Article 126 of the Criminal Code
(attempted kidnapping by a group). A report on his detention stated
that eyewitnesses, including victims, had identified him as
the perpetrator and that other grounds existed for suspecting him of
having committed the crime.
- On
30 August 2000 an investigator ordered him to be detained pending
trial pursuant to Article 90 of the Code of Criminal Procedure.
The investigator took into account the dangerousness and seriousness
of the offence, the risk of the applicant's absconding and
obstructing the investigation, and the need to examine his
implication in other similar crimes. Next day, the order was upheld
by the acting prosecutor of the north-east administrative district of
Moscow.
- On
7 September 2000 the applicant was charged on several counts,
including the use of violence dangerous to life against a State
official in the performance of his duties, attempted aggravated
kidnapping by an organised group and conspiracy to murder. The
investigation established that the applicant had entered into
agreement with P., the head of an organised criminal group acting in
Moscow and the Moscow Region, and had commissioned him in January and
then in February 1999 to beat F. and T., who had occupied senior
positions in the Customs office. F. had been beaten up by three
persons, the identity of one of whom had not been established by the
investigation, with baseball bats in the porch of his apartment
block; he had suffered open craniocerebral trauma as a result. T. had
been beaten up and had received knife wounds. The investigation also
established that later in 1999 the applicant had commissioned the
same organised group to kidnap Sh., for the purpose of blackmail.
Each time the applicant had paid P. remuneration. He had allegedly
acted on the instructions of a person whose identity had not been
established by the investigation. As well as these three criminal
cases joined into one case, the latter was joined with one more case
of infliction of bodily harm involving the same organised group.
- On
23 October and 1 November 2000 the investigator ordered that the term
of the applicant's pre-trial detention be extended. He stated, inter
alia, that it was necessary to carry out a range of investigation
measures in order to establish the identity of other persons involved
in the kidnapping of Sh. and to ascertain the applicant's
participation in that crime, to finalise the preparation of the
charges and to enable the applicant to examine the materials of the
case file. The requests contained the circumstances of the crimes, as
established by the investigation, and the description of evidence
collected by the investigation. On 26 October 2000 the prosecutor of
the north-east administrative circuit of Moscow approved the order of
23 October 2000 and extended the term of the applicant's
pre-trial detention until 24 November 2000. The investigator's
order of 1 November 2000 was supported by the prosecutor of the
north-east administrative circuit of Moscow and the prosecutor of
Moscow and was approved, on 8 November 2000, by a deputy prosecutor
general, who extended the term of the applicant's pre-trial detention
until 24 February 2001.
- The
applicant's advocate challenged the detention as unlawful and
unjustified. By a decision of 28 November 2000 a judge of the
Tverskoy District Court of Moscow dismissed the complaint. The judge
found that the nature, seriousness and circumstances of the offences
of which the applicant stood accused and their danger to the public
warranted the detention orders. The applicant did not appeal.
- On
30 January 2001 the investigator ordered a further extension of the
applicant's detention. The order reflected the state of investigation
in the case against the applicant and seven other persons including
what had been done since the last extension of the applicant's
detention. Thus, one more accomplice in the crime against F. had been
identified and arrested; evidence of participation by several other
individuals in the crime against T. had been examined; the defendants
had examined expert reports; and more documentary evidence had been
collected. The investigator submitted that it was necessary to
finalise the charges against the applicant and for him to examine the
voluminous case file, which would require additional time. On the
basis of those considerations and having regard to the seriousness of
the offences of which the applicant stood accused, the investigator
ordered the applicant's detention to be extended until 24 May 2001.
The prosecutor of the north-east administrative circuit of Moscow and
the Moscow prosecutor supported the order and on 14 February
2001 a deputy prosecutor general approved it.
- On
a further request by the investigator, approved by the regional and
city prosecutor, a deputy prosecutor general of the Russian
Federation extended, on 10 May 2001, the applicant's pre-trial
detention further, until 24 August 2001, on the grounds that the
applicant was liable to abscond, resume his criminal activity and
obstruct the investigation and in view of the gravity of the offences
of which the applicant stood accused and the need for him to examine
the case file.
- On
10 July 2001, after the investigation in the case had been completed
and the indictment approved, the case against the applicant and his
co-defendants was transferred to the Moscow City Court for trial.
- By
a decision of a judge of the Moscow City Court of 31 July 2001 the
hearing was set down for 14 August 2001 and an order was made for the
applicant's continued detention. The applicant did not appeal against
the decision.
- Between
14 August and 22 October 2001 the hearing was adjourned for reasons
attributable to the applicant's co-defendants.
- The
trial commenced on 22 October 2001.
- On
26 November 2001 the lawyer of one of the applicant's co defendants,
Mr Grachev, lodged an application seeking an order for his
client to be made the subject of an outpatient psychiatric
examination. The application was supported by all the other
defendants and their lawyers. By a decision of 27 November 2001
the court granted the application and adjourned the hearing, first
until 3 December and then until 7 December 2001.
- On
the latter date, following a further application by Mr Grachev's
lawyer, supported by all the other defendants, the court ordered that
Mr Grachev be made the subject of an inpatient psychiatric
examination with a view to determining whether he could be held
responsible for the offences of which he stood accused. It also
adjourned the hearing until the experts' report was available and
ordered that the applicant should remain in custody.
- The
experts' report on Mr Grachev's condition was issued on
4 February 2002 and two days later Mr Grachev was brought
back to his detention facility, of which the court was informed.
- The
trial recommenced on 3 April 2002 and was then adjourned until 13 May
2002, owing to the illness of one of the defendants and the need to
summon witnesses. The hearing was held on 13, 14, 15, 17 and 20 May
2002.
- On
23 May 2002 the public prosecutor lodged an application, based on
expert opinion, seeking an order for Mr Grachev to receive
compulsory inpatient psychiatric treatment and requesting the
postponement of the proceedings in consequence. On 24 May 2002 the
court granted the prosecutor's request and ordered that Mr Grachev
undergo compulsory inpatient psychiatric treatment until his
condition improved. The court further ruled that the examination of
the case against the other defendants, separately from Mr Grachev's
case, would undermine the thoroughness and objectivity of the trial.
The court therefore adjourned examination of the case until Mr
Grachev's health condition had improved. The court stated that it
took into account Mr Grachev's diagnosis, which did not require
lengthy inpatient treatment for him.
- Submitting
no objections to that decision, the applicant however requested to be
released, subject to an undertaking not to leave his place of
residence, referring to the uncertainty as to the duration of
Mr Grachev's treatment, his own lack of previous convictions,
his permanent place of residence in Moscow, the fact that he had a
wife and small child dependent upon him for support and the fact that
his state of health required regular examinations by specialists of a
kind not available at the detention facility. In a decision of 24 May
2002 the Moscow City Court refused the request for release made by
the applicant and his two co-defendants on the ground of the
seriousness of the offences of which they stood accused.
- The
applicant's lawyers lodged an appeal against this decision,
requesting that the applicant be released from custody and instead,
as a preventive measure, be required to give an undertaking not to
leave his place of residence. They pointed once again to the
uncertainty as to the duration of Mr Grachev's treatment, during
which time the case would lie dormant, and to the length of the
applicant's pre-trial detention, which had begun in August 2000.
- Mr Grachev's
lawyer also lodged an appeal against the decision of 24 May
2002. Relying on Articles 5 and 6 of the Convention, he complained
that the unlimited extension of the pre-trial detention of his client
and the other defendants in the case, including the applicant,
constituted an unlawful and excessive restriction of their rights,
which completely disregarded their right to liberty. In practice, the
decision of 24 May 2002 anticipated, by means of pre-trial
detention, their future conviction and punishment, in breach of the
principle of presumption of innocence. The lawyer also argued that
the order extending the defendants' pre-trial detention for an
indefinite period – until the as yet unknown date of
Mr Grachev's recovery – exceeded permissible restrictions
on human rights and freedoms.
- Between
2 and 25 July 2002 the appeals were not examined as one of the
defence lawyers was on annual leave. On 30 July 2002 the Supreme
Court of the Russian Federation dismissed both appeals and upheld the
decision. It stated that the lower court had taken into account the
experts' opinion of the short-term character of Mr Grachev's
disease and ordered his compulsory treatment in accordance with the
law, which provided that such treatment could be ordered if a
person's mental state posed a danger to that person and others and
required permanent and intensive observation. The Supreme Court held
that the reasons given in support of the request for the applicant's
release could not be considered cogent as the applicant stood accused
of serious crimes.
- On
19 August 2002, after the case file had been returned to the trial
court, the hearing was set down for 2 September, and then adjourned
to 10 September 2002 owing to the failure of the defence lawyers
to appear.
- On
10 September 2002 the trial court, having heard evidence from the
defence, who had requested the release of the applicant and his two
co defendants and substitution of the detention measure with
another preventive measure not involving deprivation of liberty,
granted the prosecutor's request and extended the pre-trial detention
of the applicant and his co-defendants until 1 October 2002. The
court gave as reasons for its decision the fact that the applicant
and his co-defendants had been charged with a particularly serious
offence (conspiracy to murder by an organised group with aggravated
circumstances) and that there were no grounds for annulling or
altering the preventive measure chosen. By a decision of 30 September
2002, at the prosecutor's request, a further extension in respect of
the same persons was ordered until 1 January 2003, on the same
ground. The court further referred to a decision of a medical
committee of 20 September 2002 to terminate Mr Grachev's
compulsory treatment. The applicant did not appeal against these
decisions.
- On
30 December 2002 the trial resumed. On the same day the court, at the
prosecutor's request, ordered Mr Grachev to be made the subject
of an inpatient psychiatric expert examination with a view to
determining whether he could be held responsible for the offences of
which he stood accused, and extended the pre-trial detention of the
applicant and three other defendants until 1 April 2003 on the ground
of the seriousness of the offences of which they stood accused.
- Mr Grachev's
psychiatric expert examination was carried out on 27 February
2003.
- On
10 April 2003 the Moscow City Court ordered that the hearing in the
case be held on 14 April 2003. On that date it ordered that the
pre-trial detention of the applicant and three other defendants be
extended from 1 April 2003 until 1 July 2003 inclusive, on
the ground that they were accused of particularly serious offences
and were liable to abscond and obstruct the proceedings, and in view
of the circumstances of the case and their respective personalities.
The court stated in its decision that it had had no opportunity to
discuss the question of the preventive measure in respect of the
applicant and the other defendants, whose pre-trial detention had
previously been extended until 1 April 2003. The court noted that the
case file had been kept throughout this period at the expert
institution which had carried out Mr Grachev's psychiatric
examination.
- Between
14 April and 6 May and on 9 June 2003 the hearing was adjourned for
reasons imputable to the applicant's co-defendants. The
hearing in the case ended on 18 June 2003 and the court started its
deliberations.
- On
27 June 2003 the Moscow City Court delivered a judgment in the case
against the applicant and seven other defendants. The applicant was
convicted of attempted kidnapping as part of an organised group,
inciting malfeasance in public office and aiding and abetting an
assault on a State official. The prosecutor dropped some other
charges against him, including conspiracy to murder by an organised
group with aggravated circumstances. The applicant was acquitted on
the remaining charges. He was sentenced to four years' imprisonment.
The period of his pre-trial detention commencing on 28 August 2000
was counted towards the term of his sentence.
- No
appeal was lodged against the judgment, which came into effect on 15
July 2003.
- On
15 October 2003 the Tverskoy District Court of Moscow ordered the
applicant's early conditional release.
II. RELEVANT DOMESTIC LAW
- Before
1 July 2002 preventive measures in criminal proceedings were governed
by the Code of Criminal Procedure of the RSFSR of 1960. For its
relevant provisions see the case of Kalashnikov v. Russia
(no. 47095/99, § 89, ECHR 2002 VI).
- Since
1 July 2002 preventive measures in criminal proceedings have been
governed by the Code of Criminal Procedure of the Russian Federation
(Law no. 174-FZ of 18 December 2001). Its relevant provisions are
summarised in the case of Lind v. Russia (no. 25664/05,
§§ 47-52, 6 December 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 § 3 of the Convention that
his right to trial within a reasonable time or to release pending
trial had been infringed. Article 5 § 3, in so far as relevant,
reads:
“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.”
A. The parties' submissions
- The
Government submitted that the applicant's pre-trial detention had
lasted two years, ten months and seventeen days. Though on two
occasions – on 10 September 2002 and 14 April 2003 – it
had been extended after the previous court order for his detention
had expired, its duration had complied with domestic law and was
compatible with Article 5 § 3. The domestic courts had
reasoned their detention orders by the nature, seriousness and
circumstances of the offences of which the applicant had stood
accused and their danger to the public, as well as the risk of the
applicant's absconding or obstructing the proceedings.
- The
applicant argued that the Moscow City Court had based its decisions
of 10 and 30 September 2002 and 30 December 2002 and 14 April 2003 to
extend his pre-trial detention solely on the seriousness of the
charges against him. He noted that subsequently, during the trial,
the prosecutor had dropped the charges against him of conspiracy to
murder by an organised group with aggravated circumstances, to which
the Moscow City Court had referred as a ground for his continued
detention. The arbitrary extension of his pre-trial detention, in
particular pending Mr Grachev's recovery, had constituted an
unlawful and excessive restriction of his right to liberty.
B. The Court's assessment
- The
Court reiterates that the question of whether or not a period of
detention is reasonable cannot be assessed in the abstract. Whether
it is reasonable for an accused to remain in detention must be
examined in each case according to its particular features. Continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, § 110, ECHR 2000 XI).
- It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention
of an accused person does not exceed a reasonable time. To this end
they must, having due regard to the principle of the presumption of
innocence, examine all the facts arguing for or against the existence
of the above-mentioned requirement of public interest justifying a
departure from the rule in Article 5, and must set them out in their
decisions on the applications for release. It is essentially on the
basis of the reasons given in these decisions, and any
well-documented facts stated by the applicant in his appeals, that
the Court is called upon to decide whether or
not there has been a violation of Article 5
§ 3
(see, for example, Labita v. Italy [GC], no. 26772/95,
§ 152, ECHR 2000 IV).
- The persistence of a reasonable suspicion that the
person arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention, but after a
certain lapse of time it no longer suffices. The Court must then
establish whether the other grounds given by the judicial authorities
continued to justify the deprivation of liberty (see Tomasi v.
France, judgment of 27 August 1992, Series A no. 241 A,
p. 35, § 84). The existence of a strong suspicion of
the involvement of a person in serious offences, while constituting a
relevant factor, cannot alone justify a long period of pre-trial
detention (see, for example, Tomasi, cited above, pp. 35-36,
§ 89, and Scott v. Spain, judgment of 18 December
1996, Reports of Judgments and Decisions 1996 VI,
p. 2401, § 78).
- The
Court notes that the applicant's pre-trial detention commenced on
28 August 2000 and ended on 27 June 2003, when the trial court
delivered a judgment in his case. It therefore lasted about two years
and ten months.
- The
initial ten months of the applicant's detention took place during the
investigation in the case. For the subsequent two years the applicant
remained in custody pending trial. His main concern before the Court
relates to the latter period.
- The
Court observes that all except one of the court decisions ordering
the applicant's continued detention during that period were either
based solely on the seriousness of the offences of which the
applicant stood accused (see paragraphs 23, 26, 28 and 29 above) or
did not cite any reason at all (see paragraphs 15 and 19 above).
- The
Court also notes that when rejecting the application for release in
its decision of 24 May 2002 the Moscow City Court did not address the
applicant's specific arguments concerning the lack of previous
convictions, his home, family ties and health.
- The
Court further observes that the decision of the Moscow City Court of
10 April 2003 cited, in addition to the seriousness of offences, such
reasons for the applicant's continued detention as the risk of his
absconding and obstructing the proceedings and his personality.
However, there is nothing in that decision which would indicate that
the court had based its findings on specific factual indications of
such risks including those relating to the applicant's personality.
Unless there were indications to the contrary, the risk that the
applicant, if released, would act to prejudice the administration of
justice must have diminished with time, once the investigation had
concluded (see W.
v. Switzerland, judgment of 26
January 1993, Series A no. 254 A, p. 17, § 35).
Similarly, the danger of flight necessarily decreases as the time
spent in detention passes (see Neumeister v. Austria, judgment
of 27 June 1968, Series A no. 8, p. 39, § 10).
- The Court has previously found a violation of Article
5 § 3 of the Convention in several Russian cases where the
domestic courts prolonged an applicant's detention relying
essentially on the gravity of the charges and using stereotyped
formulas paraphrasing the reasons for detention provided for by the
Code of Criminal Procedure, without explaining how they applied in
the applicant's case or considering alternative preventive measures
(see Belevitskiy v. Russia, no. 72967/01, §§ 100-03,
1 March 2007; Shcheglyuk v. Russia, no. 7649/02, §§
40-46, 14 December 2006; Khudoyorov v. Russia, no.
6847/02, §§ 180-89, ECHR 2005 ... (extracts); Khudobin
v. Russia, no. 59696/00, §§ 103 et seq., ECHR
2006 ... (extracts); Dolgova v. Russia, no. 11886/05, §§
38 et seq., 2 March 2006; Rokhlina v. Russia,
no. 54071/00, §§ 63 et seq., 7 April 2005; Panchenko
v. Russia, no. 45100/98, §§ 91 et seq., 8
February 2005; and Smirnova v. Russia, nos. 46133/99
and 48183/99, §§ 56 et seq., ECHR 2003 IX (extracts)).
- The fact that a year, two years and more than two and
a half years after the applicant had been taken into custody the
domestic courts relied solely on the gravity of the offences as a
reason for his continued detention, that they disregarded specific
relevant arguments by the defence in favour of his release and failed
to substantiate their reference to the risk of the applicant's
absconding and obstructing the proceedings as the reasons for his
continued detention, are sufficient for the Court to conclude that
the domestic authorities did not adduce “relevant and
sufficient” reasons to justify the applicant's detention. In
these circumstances it is not necessary to examine whether the
proceedings were conducted with “special diligence”.
- There has therefore been a
violation of Article 5 § 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. The parties' submissions
- The
Government contested that argument. They submitted that the length of
the proceedings had been justified by the need for the compulsory
psychiatric treatment of the applicant's co-defendant Mr Grachev, as
the Moscow City Court had considered that a separate examination of
the case against the remaining defendants would have undermined the
thoroughness and objectivity of the trial. They further pointed out
that the hearings had been adjourned for reasons attributable to the
defendants: their illnesses and failure to appear, failure of the
defence lawyers to appear and the need to conduct the expert
psychiatric examinations. The Government argued that the case, which
involved numerous episodes and nine defendants, had been particularly
complex.
- The
applicant argued that the decision of the Moscow City Court of 24 May
2002, adjourning the trial until the as yet unknown date of
Mr Grachev's recovery, had been unjustified as by that time all
the evidence in the case had already been examined. Not until a year
later had the City Court resumed examination of the case on the
merits, with the result that it was examined by a new bench and from
the beginning. The defence lawyers' appeal against the decision of 24
May 2002 emphasising a violation of Article 6 had been ignored by the
Supreme Court.
B. The Court's assessment
- The Court reiterates that in
criminal matters the “reasonable time” referred to in
Article 6 § 1 begins to run as soon as a person is “charged”;
this may occur on a date prior to the case coming before the trial
court (see, for example, Deweer v.
Belgium, judgment of 27 February
1980, Series A no. 35, p. 22, § 42), such as the date
of arrest, the date when the person concerned was officially notified
that he would be prosecuted, or the date when preliminary
investigations were opened (see Wemhoff
v. Germany, judgment of 27 June
1968, Series A no. 7, pp. 26-27, § 19; Neumeister,
cited above, p. 41, § 18; and Ringeisen
v. Austria, judgment of 16 July
1971, Series A no. 13, p. 45, § 110).
- The
Court takes the date of the applicant's arrest, 28 August 2000, as
the start date of the proceedings. These proceedings ended on 27 June
2003. They thus lasted about two years and ten months for one level
of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
fact that the applicant was held in custody required particular
diligence on the part of the authorities (see Panchenko v. Russia,
no. 45100/98, § 133, 8 February 2005, and
Kalashnikov, cited above, § 132).
- The
case was admittedly complex, involving at least eight defendants
involved in several crimes against four persons.
- The
applicant does not appear to have caused any delays in the
proceedings. However, a delay of about five and a half months
during the proceedings before the trial court was attributable to his
co-defendants (see paragraphs 16, 21, 26, 27 and 32 above), for which
the State cannot be blamed.
- As to the conduct of the authorities, the
length of the preliminary investigation of slightly over ten months
does not appear to have been manifestly excessive.
- During the court proceedings,
which lasted one year, eleven months and seventeen days, a delay of
about four months, from 27 November 2001 to
4 February 2002 and from 30 December 2002 to 27 February
2003, was due to the need to carry out psychiatric expert
examinations of the applicant's co-accused Mr Grachev.
Another four months' delay, from 24 May 2002 to 20 September
2002, was explained by Mr Grachev's compulsory psychiatric
treatment ordered because of that person's mental state, which had
posed a danger to himself and others and required permanent and
intensive observation (see paragraph 26 above). Those delays do not
appear unjustified or clearly unreasonable.
- The
Court is not aware of any developments in the case between 6 February
and 3 April 2002, 20 September and 30 December 2002 and
27 February and 10 April 2003. However, those periods of
inactivity were relatively short.
- Taking
into account the complexity of the case, the delay attributable to
the applicants' co-defendants and relatively short periods of the
authorities' inactivity, the Court does not find that in the
circumstances of the case the length of the proceedings was excessive
to the extent that it failed to meet the “reasonable time”
requirement.
- There
has accordingly been no violation of Article 6 § 1.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 3,450
United States dollars (USD) in respect of pecuniary damage, which
were calculated as expenses incurred by his family in supplying him
with food and other necessities during his pre-trial detention. He
submitted no evidence in support of his claim. He further claimed
10,000 euros (EUR) in respect of non-pecuniary damage sustained
through the excessively long detention and criminal proceedings in
his case.
- The
Government contested these claims.
- The
applicant failed to show that the expenses had been actually
incurred. The Court therefore rejects the claim in respect of
pecuniary damage. As regards non-pecuniary
damage, the Court considers that in the circumstances of the
case, the finding of a violation constitutes in itself a sufficient
just satisfaction for any damage which could have been suffered by
the applicant.
B. Costs and expenses
- The
applicant claimed USD 2,000 as legal costs for the proceedings before
the Court, translation costs and post expenses.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,225 for costs and
expenses in the proceedings before the Court, plus any tax that may
be chargeable to the applicant.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 5 § 3 of the Convention;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,225 (one
thousand two hundred and twenty-five euros) in respect of costs and
expenses, to be converted into Russian roubles at the rate applicable
at the date of settlement, plus any tax that may be chargeable to the
applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
