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FIRST
SECTION
CASE OF PELEVIN v. RUSSIA
(Application
no. 38726/05)
JUDGMENT
STRASBOURG
10
February 2011
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 Pelevin 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38726/05) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Sergey Vasilyevich
Pelevin (“the applicant”), on 20 October 2005.
- The
applicant was represented by Mr A.I. Samsonov, a lawyer practising in
St Petersburg. The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, the former representative of the
Russian Federation at the European Court of Human Rights.
- On
9 February 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in St Petersburg.
A. Arrest of the applicant and detention orders of
17 April, 10 June and 17 August 2004
- On
15 April 2004 the applicant was apprehended.
- On
17 April 2004 the Kuybyshevskiy District Court of St Petersburg
authorised his detention on remand. The court based its decision on
the grounds that the applicant had a criminal record and was
suspected of having committed several serious criminal offences,
notably robbery and participation in a criminal gang, that he was
unemployed and had no income to support himself and his family.
Moreover, as some accessories to robbery had not yet been identified,
the applicant, if remained at large, could have alerted his
accomplices and thus interfere with the investigation.
- It
appears that by decisions of 10 June and 17 August 2004 the District
Court extended the applicant’s detention. On the latter
occasion it did so until 21 October 2004. According to the applicant,
the court relied mainly on the gravity of charges against him.
B. Detention orders of 5 November and 28 December 2004
and related appeals
- On
21 October 2004 the case against the applicant and his fourteen
co-defendants was referred to the Leningrad Regional Court
for trial.
- On
5 November 2004 the trial court in a closed meeting decided to fix
a date for the preliminary hearing. Besides, without referring to any
grounds, it ordered that the detention measure imposed on the
applicant and his co-defendants “should remain unchanged”.
- On
28 December 2004 the Regional Court held the preliminary hearing. The
applicant and his counsel pleaded for his release on factual and
legal grounds. They submitted that the applicant’s criminal
record had been purged and that he had dependants, namely a disabled
mother and under-age daughter. They also asserted that the authorised
detention had expired on 21 October 2004 and that a further
detention – from 5 November 2004 afterwards – had been
extended unlawfully, that is outside the time-limit and in the
absence of the applicant and his representative. The court
acknowledged that the applicant’s previous conviction had
expired and that he had two dependants. However, it attached decisive
weight to the gravity of the charges and found no reason to vary the
preventive measure because “the initial grounds for detention
still obtained”. The court thus authorised the applicant’s
further detention. It did not set any time-limit. On the same
occasion, the Regional Court returned the case to the prosecutor for
remedying defects of the bill of indictment.
- Counsel
for the applicant filed an appeal, maintaining that any extension of
the custodial measure after the initial detention period had expired
on 21 October 2004 had been unlawful.
- On
21 April 2005 the Supreme Court of Russia dismissed the appeal. The
relevant part of its decision reads:
“... It appears from the materials that the case
against [the applicant and others] was received by the [Regional]
Court on 21 October 2004. The authorities in charge of the
preliminary investigation had authorised their detention until that
date.
Neither at the directions hearing, nor at the
preliminary hearing did the [Regional] Court detect any violations of
law in the application of the preventive measure to the defendants
and its extension during the pre-trial investigation.
There existed no grounds for revoking or varying the
chosen measure.
Taking into account those considerations and also the
gravity of the charges against the defendants, the [Regional] Court
correctly decided not to vary the preventive measure in the form of
placement in custody.
Since 5 November 2004 the defendants have been held in
custody on the basis of a lawful and justified judicial decision ...”
C. Detention order of 19 April 2005 and related appeal
- On
19 April 2005 the Regional Court examined and granted the
prosecutor’s application for the extension of the defendants’
detention until 21 July 2005. The court relied on the same
grounds as in its decision of 28 December 2004 (see paragraph
10).
- The
applicant’s lawyer appealed. He submitted that the Regional
Court by its decision had violated the right of the defence because
it extended the detention period in the absence of the case materials
which had been at that time at the Supreme Court. He also reiterated
the argument that the applicant’s detention after 21 October
2004 had been unlawful.
- By
a decision of 29 June 2005, the Supreme Court dismissed the appeal.
It held that the Code of Criminal Procedure did not prevent the
decision on extending detention from being made at the time when the
case-file was with the appeal court. Referring to its earlier
decision of 21 April 2005, it declined to examine again the
lawfulness of the applicant’s detention after 21 October 2004.
D. Detention orders of 12 July 2005 and thereafter
- On
15 June 2005 the case against the applicant and his co-defendants was
again referred to the Regional Court for trial.
- By
a decision of 12 July 2005, it extended the applicant’s
detention until 21 October 2005. The court stated as follows:
“... Pelevin S.V. does not have a criminal record,
has a minor dependent and a disabled mother ... However, the court
has a regard to the gravity of the charges levelled against Pelevin
S.V. The grounds which the court relied upon when it decided to place
Pelevin S.V. in detention still obtain, therefore the [Regional]
Court finds no reasons for varying ... the preventive measure [in
question] ...”
- From the material submitted to the Court, it follows
that the Leningrad Regional Court, paraphrasing the grounds set out
in the decision of 12 July 2005, extended the applicant’s
detention yet six times, notably by decisions of 17 October 2005, 17
January, 18 April, 11 July, 20 October 2006 and 19 January 2007. By
the latter detention order, it maintained the custodial measure until
21 April 2007.
- The
applicant was convicted on 16 April 2007. No particulars about the
conclusions in his criminal case have been provided to the Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention during criminal proceedings
- “Preventive measures” (меры
пресечения)
include an undertaking not to leave a town or region, personal
surety, bail and deprivation of liberty (Article 98 of the Code
of Criminal Procedure). If necessary, the suspect or accused may be
asked to give an undertaking to appear (обязательство
о явке) (Article 112 of the Code).
- When
deciding on a preventive measure, the competent authority is required
to consider whether there are “sufficient grounds to believe”
that the accused would abscond during the investigation or trial,
re-offend or obstruct the establishment of the truth (Article 97). It
must also take into account the gravity of the charges, information
on the accused’s character, his or her profession, age, state
of health, family status and other circumstances (Article 99).
- Detention
may be ordered by a court if the charges carry a sentence of at least
two years’ imprisonment, provided that a less restrictive
preventive measure cannot be applied (Article 108 § 1).
- After
arrest, the suspect is placed in custody “pending
investigation”. The maximum permitted period of detention
“pending investigation” is two months but it can be
extended for up to eighteen months in “exceptional
circumstances” (Article 109 §§ 1-3). The period of
detention “pending investigation” is calculated up to the
date on which the prosecutor sends the case to the trial court
(Article 109 § 9).
- The
term of detention “during the trial” is calculated from
the date the prosecutor sends the case to the trial court and to the
date the judgment is given. The period of detention “during the
trial” may not normally exceed six months but if the case
concerns serious or particularly serious criminal offences, the trial
court may approve one or more extensions of no longer than three
months each (Article 255 §§ 2 and 3 of the Code).
- An
appeal may be lodged with a higher court within three days against a
judicial decision ordering or extending detention. The appeal court
must decide the appeal within three days after its receipt (Article
108 § 11).
- On
22 March 2005 the Constitutional Court of the Russian Federation
issued a decision no. 4-P where it held, in the relevant
parts, as follows:
“The second part of Article 22 of the Constitution
of the Russian Federation provides that ... detention is permitted
only on the basis of a court order ... Consequently, if the term of
detention, as defined in the court order, expires, the court must
decide on the extension of the detention, otherwise the accused
person must be released ...
These rules are common for all stages of criminal
proceedings, and also cover the transition from one stage to another.
... The transition of the case to another stage does not
automatically put an end to the measure of restraint applied at
previous stages.
Therefore, when the case is transmitted by the
prosecution to the trial court, the measure of restraint applied at
the pre-trial stage ... may continue to apply until the expiry of the
term for which it has been set in the respective court decision
[imposing it] ...
[Under Articles 227 and 228 of the Code of Criminal
Procedure] a judge, after having received the criminal case
concerning a detained defendant, should, within 14 days, set a
hearing and establish “whether the measure of restraint applied
should be lifted or changed”. This wording implies that the
decision to detain the accused or extend his detention, taken at the
pre-trial stage, may stand after the completion of the pre-trial
investigation and transmittal of the case to the court, only until
the end of the term for which the measure of restraint has been set.
The prosecution, in its turn, when approving the bill of
indictment and transferring the case file to the court, should check
whether the term of detention has not expired and whether it is
sufficient to allow the judge to take a decision [on further
detention of the accused pending trial]. If by the time of transfer
of the case file to the court this term has expired, or if it appears
to be insufficient to allow the judge to take a decision [on
detention], the prosecutor, applying Articles 108 and 109 of the Code
of Criminal Proceedings, [must] ask the court to extend the period of
detention.”
- The Supreme Court in the Resolution of the Supreme
Court of Russia No. 1 of 5 March 2004 on Application by Courts of the
Code of Criminal Procedure noted that, when deciding on extension of
a defendant’s detention during the trial, the court should
indicate the grounds justifying the extension and its time-limit.
B. Compensation for unlawful detention
- The
Civil Code of the Russian Federation provides as follows:
Article 1070. Responsibility for damage
caused by unlawful acts of investigative authorities, prosecuting
authorities and courts
“1. Damage caused to a citizen as a
result of unlawful conviction, unlawful criminal prosecution, ...
unlawful detention on remand ... shall be compensated at the expense
of the Treasury of the Russian Federation, and in the instances
provided for by law, at the expense of the Treasury of the subject of
the Russian Federation ... in full, irrespective of the fault of the
officials of the agencies ...”
Article 1100. Grounds for compensation for
non-pecuniary damage
“Compensation for non-pecuniary damage shall be
made irrespective of the fault of the person causing the damage when:
... the damage is caused to a citizen as a result of his
unlawful conviction, unlawful criminal prosecution, unlawful
detention on remand ...”
- The
Civil Code provides that the damage caused by an unlawful detention
should be compensated irrespective of the fault of the wrongdoer
(that is the State agency which decided detain). However, the notion
of “unlawful” detention is not developed in provisions of
the Civil Code. It appears that “unlawfulness” of
detention have to be found by a competent authority.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF
THE CONVENTION
- The applicant complained that his detention from 21
October to 28 December 2004 had been unlawful. He relied on
Article 5 § 1 of the Convention which reads, in its relevant
parts, as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so ...”
A. The parties’ submissions
- The Government conceded that the applicant’s
detention between 21 October and 5 November 2004 had not been
based on a court order. They argued, however, that the applicant had
failed to resort to domestic remedies available to him under the
national civil law. In particular, he had failed to bring civil
proceedings for compensation in accordance with Articles 1069
and 1100 of the Civil Code.
- As to the period from 5 November to 28 December 2004,
they submitted that at that time domestic courts had interpreted the
relevant law, in particular Article 255 of the Code of Criminal
Procedure, as permitting the detention of an accused without a court
order for up to six months from the date of receipt of the case-file
by the trial court. Even though in 2005 the Constitutional Court had
found that such practice was to be tainted with arbitrariness, at the
material time that interpretation of Article 255 had been valid and
endorsed by all domestic courts. Therefore, the Regional Court in its
decision of 5 November 2004 had lawfully limited itself to the
general remark that the applicant should remain in custody. It had
not breached the requirements of legal certainty and the protection
from arbitrariness.
B. Court’s assessment
1. Admissibility
- The
Court notes the Government’s objection of non-exhaustion of
domestic remedies by the applicant as regards the detention period
from 21 October to 5 November 2004.
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges
applicants to use first the remedies that are normally available and
sufficient in the domestic legal system to enable them to obtain
redress for the breaches alleged. It is incumbent on the respondent
Government claiming non-exhaustion to indicate with sufficient
clarity the remedies to which the applicant did not have recourse and
to satisfy the Court that the remedies were effective and available
in theory and in practice at the relevant time, that is to say, that
they were accessible, were capable of providing redress in respect of
the applicant’s complaints and offered reasonable prospects of
success (see Cennet Ayhan and Mehmet Salih Ayhan v. Turkey,
no. 41964/98, § 65, 27 June 2006).
- In the present case the Government suggested that the
applicant could have brought civil proceedings for damages incurred
through his unauthorized detention. However, the Court reiterates
that the right to liberty and security is not the same as the right
to receive compensation for unlawful deprivation of liberty.
Paragraph 1 of Article 5 of the Convention covers the former and
paragraph 5 of Article 5 the latter. The court invited to rule on an
action for damages caused by unlawful detention examines the matter
after the events and therefore does not have jurisdiction to order
release if the custodial measure has been applied in breach of law.
Therefore, the possibility of obtaining compensation for the unlawful
or unjustified detention will not generally constitute an adequate
and sufficient remedy for a substantive complaint under Article 5 §
1 (see, Moskovets v. Russia, no. 14370/03, § 51, 23
April 2009 and, Shcheglyuk v. Russia, no. 7649/02,
§ 34, 14 December 2006).
- The
Court notes that in certain circumstances such remedy may prove to be
effective (see, for example, Trepashkin v. Russia, no.
36898/03, §§ 24-26 and 66-74, 19 July 2007). However,
it should be borne in mind that pursuant to the Russian Civil Code,
payment of an award, in respect of pecuniary and/or non-pecuniary
damages, is conditional upon the prior finding that the detention was
unlawful (see paragraph 28 above).
- In
the present case the applicant twice complained to the Supreme Court
about the unlawfulness of his detention. By the decision of 21 April
2005 the Supreme Court dismissed his allegations in a summary fashion
and then, by the decision of 29 June 2005, it refused to examine them
again (see paragraphs 12 and 15 above). Therefore, it is improbable
that the applicant’s civil action for compensation would have
had any prospect of success.
- In
the light of the above considerations, the Court is not prepared to
dismiss this part of the complaint for non-exhaustion of domestic
remedies.
- It
also considers that the applicant’s complaint cannot be
declared manifestly ill-founded within the meaning of Article 35 §
3 of the Convention and is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 refer back to national law and state the obligation to conform to
the substantive and procedural rules thereof. The “lawfulness”
of detention under domestic law, however, is not always the decisive
element. The Court must in addition be satisfied that detention
during the period under consideration was compatible with the purpose
of Article 5 § 1 of the Convention, which is to prevent persons
from being deprived of their liberty in an arbitrary fashion (see,
among many other authorities, Khudoyorov v. Russia, no.
6847/02, § 124, ECHR 2005-X).
- On
the facts the Court observes that on 21 October 2004, the day when
the applicant’s case was referred to the trial court, the
period of his detention authorised by the decision of 17 August 2004
expired. However, no further decision on his detention was taken.
- The Court has found a violation of Article 5 § 1
of the Convention in many cases against Russia concerning the
practice of holding defendants in custody solely on the strength of
the fact that their case had been referred to the trial court. It
held that the practice of keeping defendants in detention without
judicial authorisation or clear rules governing their situation was
incompatible with the principles of legal certainty and the
protection from arbitrariness, which are common threads throughout
the Convention and the rule of law (see Isayev v. Russia, no.
20756/04, §§ 131-133, 22 October 2009; Yudayev v.
Russia, no. 40258/03, §§ 59-61, 15 January 2009; Belov
v. Russia, no. 22053/02, §§ 90-91, 3 July 2008;
Lebedev v. Russia, no. 4493/04, §§ 55-58, 25
October 2007; Shukhardin v. Russia, no. 65734/01, §§
84-85, 28 June 2007; Belevitskiy v. Russia, no. 72967/01,
§§ 88-90, 1 March 2007; Korchuganova v.
Russia, no. 75039/01, § 57, 8 June 2006; Nakhmanovich
v. Russia, no. 55669/00, §§ 70-71, 2 March 2006 and
Khudoyorov v. Russia, cited above, §§ 147-151). The
Court takes cognisance of the fact that in the present case the
Russian Government acknowledged that the applicant’s detention
during the period from 21 October to 5 November 2004 had not
been based on a judicial decision and had therefore been in breach of
domestic law and Article 5 § 1 of the Convention.
- It
is further observed that on 5 November 2004 the trial court set the
date for the preliminary hearing and held that the applicant and
other defendants should remain in custody. It did not, however, give
any reasons for maintaining the custodial measure or fix a time-limit
for the extended detention (see paragraph 9 above). This is a kind of
situation that has been examined in many cases lodged against Russia
in which the Court has found that the absence of any grounds given by
the judicial authorities in their decisions authorising detention for
a prolonged period was incompatible with the principle of protection
from arbitrariness enshrined in Article 5 § 1. Permitting a
prisoner to languish in detention without a judicial decision based
on concrete grounds and without setting a specific time-limit would
be tantamount to overriding Article 5, a provision which makes
detention an exceptional departure from the right to liberty and one
that is only permissible in exhaustively enumerated and strictly
defined cases (see Avdeyev and Veryayev v. Russia, no.
2737/04, §§ 45-47, 9 July 2009; Bakhmutskiy v. Russia,
no. 36932/02, §§ 112-114, 25 June 2009; Gubkin
v. Russia, no. 36941/02, §§ 112-114, 23 April
2009; Shukhardin, cited above, §§ 65-70; Ignatov
v. Russia, no. 27193/02, §§ 79-81, 24 May 2007;
Solovyev v. Russia, no. 2708/02, §§ 97-98, 24 May
2007; Nakhmanovich, cited above, §§ 70-71; and
Khudoyorov, cited above, §§ 134 and 142). The Court
sees no reason to reach a different conclusion in the present case.
It considers that the decision of 5 November 2004 did not comply with
the requirements of clarity, foreseeability and protection from
arbitrariness and that the ensuing period of the applicant’s
detention was not “lawful” within the meaning of Article
5 § 1.
- Having examined the material submitted and having
regard to its case-law on the subject the Court finds that there has
been a violation of Article 5 § 1 of the Convention on account
of the applicant’s detention from 21 October to 28
December 2004.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention during the trial had been
unreasonably long and had not been founded on relevant and sufficient
reasons. He relied on Article 5 § 3 of the Convention which
reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
A. The parties’ submissions
- The
Government, without providing any arguments, claimed that the
applicant’s detention had not been in breach of the
requirements of Article 5 § 3 of the Convention
- The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
- The
Court reiterates that the question whether it is reasonable for an
accused to remain in detention must be assessed in each case
according to its special 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 et seq., ECHR 2000-XI).
- The
existence and persistence of reasonable suspicion that the person
arrested has committed an offence is a condition sine qua
non for the lawfulness of the continued detention. However
after a certain lapse of time it no longer suffices. In such cases,
the Court must establish whether the other grounds given by the
judicial authorities continued to justify the deprivation of liberty.
Where such grounds were “relevant” and “sufficient”,
the Court must also ascertain whether the competent national
authorities displayed “special diligence” in the conduct
of the proceedings (see Labita v. Italy [GC], no.
26772/95, §§ 152 and 153, ECHR 2000-IV). Justification for
any period of detention, no matter how short, must be convincingly
demonstrated by the authorities (see Shishkov v. Bulgaria, no.
38822/97, § 66, ECHR 2003-I). When deciding whether a
person should be released or detained, the authorities are obliged to
consider alternative measures of ensuring his appearance at trial
(see Jablonski v. Poland, no. 33492/96, § 83, 21
December 2000).
- On
the facts of the case, the applicant was arrested on 15 April 2004
and remained in custody at least until 16 April 2007. The inordinate
length of the applicant’s detention - three years - is a matter
of grave concern for the Court. In these circumstances, the national
authorities should have put forward very weighty reasons for keeping
the applicant in detention.
- The
Court accepts that the applicant’s detention could have
initially been warranted by the gravity of the charges against him
and the consideration to the risk of his obstructing justice by
putting pressure on witnesses. It remains to be ascertained
whether the judicial authorities gave “relevant” and
“sufficient” grounds to justify his continued detention
and whether they displayed “special diligence” in the
conduct of the proceedings.
- The
Court observes that the authorised period of the applicant’s
initial pre-trial detention expired on 21 October 2004, the date when
his case was referred to the trial court. In the period from 21
October to 5 November 2004 the applicant was kept in custody
with no judicial authorisation. On 5 November the domestic court
maintained his detention without citing any particular reason (see
paragraphs 9 above). The only ground invoked in the two subsequent
detention orders of 28 December 2004 and 19 April 2005 was the
gravity of charges, with the addition that “the initial grounds
warranting the application of the custodial measure still obtain”
and that “there were no reasons for varying it” (see
paragraphs 10 and 13 above). Afterwards, in seven extension orders
between 12 July 2005 and 19 January 2007 the Regional Court
repeatedly used the summary stereotyped formula and its reasoning did
not evolve with the passing of time to reflect the developing
situation and to verify whether the reasons for detention remained
valid at the later stages of the proceedings (see paragraphs 17
and 18 above). At no point in the proceedings did the domestic
authorities consider whether the length of the applicant’s
detention had exceeded a “reasonable time” or whether
there was any room for applying alternative non-custodial measures to
ensure his appearance at trial.
- In
the light of the facts of the present case, the Court considers that
the domestic judicial authorities’ decisions were not based on
an analysis of all the pertinent circumstances. It reiterates that
with the passage of time, the initial grounds for detention become
less and less relevant and that the courts should rely on other
“relevant” and “sufficient” grounds to
justify the continued deprivation of liberty. It is of particular
concern for the Court that the Russian authorities used a stereotyped
formula in their extension orders.
- The
Court has frequently found a violation of Article 5 § 3 of the
Convention in Russian cases where the domestic courts extended an
applicant’s detention relying essentially on the gravity of the
charges and using stereotyped formulae without addressing specific
facts or considering alternative preventive measures (see Belevitskiy
v. Russia, no. 72967/01, §§ 99 et seq., 1 March
2007.; Khudobin v. Russia, no. 59696/00, §§ 103 et
seq., ECHR 2006-... (extracts); Mamedova v. Russia, no.
7064/05, §§ 72 et seq., 1 June 2006; Dolgova v. Russia,
no. 11886/05, §§ 38 et seq., 2 March 2006; Khudoyorov v.
Russia, cited above, §§ 172 et seq.; 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)).
- Having regard to the foregoing considerations, the
Court finds that the authorities failed to justify the length of the
applicant’s detention by grounds which can be regarded as
“relevant” and “sufficient”. In those
circumstances it is not necessary to examine whether the proceedings
were conducted with due diligence.
- There has therefore been a violation of Article 5 §
3 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the appeal court had not reviewed speedily
his appeals against the extension orders of 28 December 2004 and
19 April 2005. He relied on Article 5 § 4 of the
Convention, which provides as follows:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. The parties’ submissions
- The
Government argued that as regards the examination of the applicant’s
appeal against the extension order of 28 December 2004, his right
guaranteed by Article 5 § 4 of the Convention had not been
violated. The relevant materials had been submitted to the Supreme
Court in February 2005. The hearing had been scheduled for 31
March 2005 but had been postponed owing to a sickness of a
judge-rapporteur. Assigning the case to another judge would not
expedite the proceedings.
- As
to the appeal proceedings brought in respect of the extension order
of 19 April 2005, the Government submitted no information or
argument.
- The
applicant reiterated his complaint.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
- Article
5 § 4 of the Convention, in guaranteeing to persons
detained a right to institute proceedings to challenge the lawfulness
of their detention, also proclaims their right, following the
institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of detention and ordering its termination
if it proves unlawful (see Baranowski v. Poland, no. 28358/95,
§ 68, ECHR 2000-III).
- In
the present case it took the domestic courts approximately one
hundred days to examine the appeal against the extension order of
28 December 2004 and approximately sixty days to examine the
appeal against the extension order of 19 April 2005 (see paragraphs
10-15 above). The Government submitted no information as regards the
latter proceeding. As to the former, the Court considers that the
illness of the official cannot be accepted as an excuse to dispense
the State from the obligation to secure a right of a person to a
speedy judicial review of the lawfulness of his or her detention.
- The
Court notes that nothing in the case suggests that the applicant in
any way caused delays in the appeals proceedings.
- In the light of its consistent case-law, the Court
finds that the significant delays in the examination of the
applicant’s appeals cannot be considered compatible with the
“speediness” requirement of Article 5 § 4 (compare,
for example, Rehbock v. Slovenia, no. 29462/95, §§
85-86, ECHR 2000-XII, where the review proceedings which lasted
twenty-three days were not “speedy” and Mamedova v.
Russia, no. 7064/05, § 96, 1 June 2006; where the
appeal proceedings lasted thirty-six, twenty-six, thirty-six, and
twenty-nine days).
- There
has accordingly been a breach of Article 5 § 4.
IV. 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 10,000 euros (EUR). He did not specify the nature,
that is pecuniary or non-pecuniary, of his claims.
- The
Government contested the claim as excessive.
- The
Court notes that it has found a combination of violations in the
present case and considers that the applicant’s sufferings and
frustration cannot be compensated for by a mere finding of a
violation. Making its assessment on an equitable basis, the Court
awards the applicant EUR 10,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on it.
B. Costs and expenses
- The
applicant did not claim reimbursement of her costs and expenses
incurred before the domestic authorities and the Court. Accordingly,
the Court does not make any award under this head.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- 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 10,000 (ten
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 10 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis Registrar President
