BIRYUCHENKO AND OTHERS v. RUSSIA - 1253/04 25902/05 40116/08 - Committee Judgment [2014] ECHR 1382 (11 December 2014)

In the case of Biryuchenko and Others v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Erik Møse,
          Dmitry Dedov, judges,
and Søren Prebensen, Acting Deputy Section Registrar,

Having deliberated in private on 18 November 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in three applications (nos. 1253/04, 25902/05 and 40116/08) 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 five Russian nationals (“the applicants”), whose names and dates of introduction of applications are set out in the Appendix.

2. The applicant Mr Biryuchenko was represented by Mr R.N. Cheremchuk, a lawyer practising in St Petersburg. The applicants Mr Stepanov, Mr Leontyev and Mr Ponomarev were represented by Mr A.N. Marchenko, a lawyer practising in the Leningrad Region. The applicant Mr Oynas was represented by Ms O.V. Preobrazhenskaya, a lawyer practising in Moscow.

3. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

4. The applications were communicated to the Government on 29 January 2009, 19 October 2009 and 30 November 2009, respectively.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants are all Russian nationals. They were charged with different criminal offences and placed in detention. The applicants complain in particular that after their cases had been submitted to the trial court they were detained for approximately six months without a court order. The applicants’ individual circumstances are detailed below.

A. Criminal proceedings against the applicants and their detention

1. The case of Mr Biryuchenko (application no. 1253/04 lodged on 11 December 2003)

6. The applicant was born in 1964 and lives in Vsevolozhsk.

7. In 1998 criminal proceedings were instituted against him on suspicion of being a member of a large criminal group which had committed extortions by threats and other serious crimes.

8. On 7 December 1999 he was arrested by Czech police in Prague and on 18 February 2002 extradited to Russia where he was placed in detention.

9. On 1 March 2002 the Prosecutor of St Petersburg extended his detention up to four months, until 18 June 2002. The applicant did not appeal against this order.

10. On 10 June 2002 the Deputy Prosecutor General extended the applicant’s detention until 18 September 2002.

11. On 15 July 2002 the applicant’s counsel lodged an application for release with the Oktyabrskiy Federal Court claiming that the applicant should be released on the ground that the new Code of Criminal Procedure had entered into force on 1 July 2002, and that a person could now be detained only on the basis of a court order.

12. On 9 August 2002 the Oktyabrskiy Federal Court dismissed the application for release. This decision was quashed on 11 September 2002 by the St Petersburg City Court on the applicant’s appeal and the matter was sent back for reconsideration. On 4 October 2002 the Oktyabrskiy Federal Court referred the matter back to the City Court because the case had already been referred to it for trial.

13. On 19 September 2002 the applicant was served with a bill of indictment and on the same date the case was referred for trial to the St Petersburg City Court.

14. On 20 September and on 23 December 2002 the applicant applied to the St Petersburg City Court asking to be released on the grounds that his detention had ceased to be lawful after the expiration on 18 September 2002 of the last detention order.

15. On 13 March 2003 the applicant complained to the Supreme Court (“the Supreme Court”) about the St Petersburg City Court’s failure to examine his application for release of 23 December 2002. On 10 April 2003 the Supreme Court forwarded his complaint to the City Court.

16. The applicant’s detention was further extended by the St Petersburg City Court on 18 March, 18 June and 18 September 2003. Each time the City Court relied on the gravity of charges. All detention orders were appealed by the applicant. The detention orders of 18 March and 18 June 2003 were upheld by the Supreme Court on 18 September and on 8 October, respectively, whereas the detention order of 18 September 2003 was quashed on 3 December 2003.

17. On 8 December 2003 the applicant lodged an application for release with the St Petersburg City Court on the ground that since the extension order of 18 September 2003 had been quashed on appeal, he should be immediately released from detention. This application was never examined by the City Court.

18. On 16 December 2003 the St Petersburg City Court relying on the gravity of the charges extended the applicant’s detention for further three months, until 18 March 2004.

19. On 30 December 2003 the applicant appealed on the ground that the order had been unlawful since it was only based on the gravity of charges against him. Moreover, his detention had been extended despite the fact that the previous detention order had been quashed on appeal.

20. It appears that the applicant’s detention was further extended on 16 March 2004 and that the applicant appealed against that decision. On 29 March 2004 the St Petersburg City Court referred the case for additional investigation and confirmed that the applicant should remain in detention.

21. On 5 May 2004 the St Petersburg City Court referred the case for additional investigation. On the same date an investigator with the Prosecutor’s Office of St Petersburg ordered the applicant’s release on an undertaking not to leave his place of residence.

22. On 6 December 2007 the St Petersburg City Court found the applicant guilty as charged and sentenced him conditionally to five years’ imprisonment.

2. The case of Mr Stepanov and Others (application no. 25902/05 lodged on 9 June 2005)

23. The applicants, Mr Ilya Aleksandrovich Stepanov (“the first applicant”), Mr Roman Sergeyevich Ponomarev (“the second applicant”) and Mr Aleksandr Anatolyevich Leontyev (“the third applicant”) were born in 1978, 1975 and 1964 respectively and live in Syasstroy, in the Leningrad region.

24. On 11 November 2004 the applicants were arrested on suspicion of theft.

25. On 13 November 2004 the Lodeynopolskiy Town Court of the Leningrad Region extended the applicants’ custody up to seventy-two hours. The applicants did not appeal this decision.

26. On 16 November 2004 the same court ordered the applicants’ pre-trial detention. No appeal was lodged against this order.

27. On 11 January 2005 the Lodeynopolskiy Town Court by three separate decisions extended the applicants’ detention until 12 February 2005. The Town Court held, in respect of the first and second applicants, that they “had committed the crime” while they had been under a written undertaking not to abscond. In respect of the third applicant, the Town Court held that he “had committed the crime” while he had been under a suspended sentence. The applicants appealed, notably on account of the wording used in these orders.

28. On 4 February 2005 the prosecuting authorities referred the criminal case against the applicants to the Lodeynopolskiy Town Court for trial.

29. On 9 February 2005 the Leningrad Regional Court upheld the detention orders of 11 January 2005.

30. On 14 February 2005 the Lodeynopolskiy Town Court remitted the criminal case against the applicants to the prosecuting authorities. The Town Court also held that the measure of restraint should remain unchanged without other details.

31. On 11 and 12 April 2005 the applicants’ detention was upheld by the Town Court with the same summary formula. Both decisions were appealed by the applicants and on 18 May 2005 both were upheld by the Leningrad Regional Court.

32. On 25 July 2005 the Lodeynopolskiy Town Court extended the applicants’ detention, indicating that this extension was necessary given that the six-month period of the applicants’ detention pending trial would expire on 4 August 2005.

33. On 21 October 2005 the Lodeynopolskiy Town Court acquitted the applicants of all charges and they were immediately released. On 14 December 2005 the Regional Court quashed this judgment.

34. On 28 April 2007 the Lodeynopolskiy Town Court found the applicants guilty of theft and sentenced them to different terms of imprisonment. On 6 June 2007 the Leningrad Regional Court upheld that judgment.

3. The case of Mr Oynas (application no. 40116/08 lodged on 10 September 2004)

35. The applicant, Mr German Leonidovich Oynas was born in 1966 and lives in St Peterburg.

36. On 27 November 2003 the applicant was charged with causing grave bodily injury, an offence under Article 111 § 1 of the Criminal Code.

37. On 28 November 2003 the Vyborgskiy District Court of St Petersburg ordered the applicant’s placement in detention. On 25 December 2003 this order was upheld by the St Petersburg City Court.

38. On 22 January 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 February 2004. The applicant appealed. On 26 February 2004 the St Petersburg City Court, in the applicant’s absence, upheld the extension order of 22 January 2004.

39. On 26 February 2004 the case was referred to the Vyborgskiy District Court for trial.

40. On 2 March 2004 the District Court, in the absence of the applicant, decided to set the case for trial without holding a preliminary hearing and held that the measure of restraint applied to the applicant should remain unchanged. The prosecutor and the applicant appealed.

41. On 29 April 2004 the St Petersburg City Court, in the applicant’s absence, quashed the decision of 2 March 2004 in so far as it had set the examination of the case without holding of a preliminary hearing and remitted the matter for fresh examination to the Vyborgskiy District Court. It also held that the review of the lawfulness of the applicant’s detention was not within its competence. It further decided that the measure of restraint applied to the applicant should remain unchanged.

42. On 20 May 2004 the applicant lodged an application for release with the Vyborgskiy District Court. He complained that after 26 February 2004 he had been detained without any court order, that on 29 April 2004 the St Petersburg City Court quashed the decision of 2 March 2004 in his absence and, without giving any reasons, ordered not to change the measure of restraint. On 25 June 2004 this application was rejected by the District Court.

43. On 27 May 2004 the Vyborgskiy District Court opened the preliminary hearing. The applicant applied for release. On the same date the court rejected the applicant’s motion for release having found that the applicant was charged with a serious offence, had been previously convicted and might interfere with the proceedings if released. The hearing was adjourned until 18 June 2004 and subsequently until 25 June 2004.

44. On 5 June 2004 the applicant appealed against the decision of 27 May 2004.

45. On 18 June 2004 the applicant’s counsel lodged an application for release with the Vyborgskiy District Court. On 25 June 2004 the Vyborgskiy District Court dismissed it having found that the applicant was charged with a serious offence, had been previously convicted, and might interfere with proceedings if released

46. On 25 June 2004, after having held the preliminary hearing, the Vyborgskiy District Court, set the case for trial on 9 July 2004 and held that the measure of restraint should remain unchanged.

47. On 4 and 5 July 2004 the applicant appealed against the decisions of 25 June 2004.

48. On 9 July 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 November 2004, having found that the applicant was charged with a serious offence, he had been previously convicted and might interfere with proceedings if released. The applicant appealed. On 14 October 2004 the St Petersburg City Court upheld the detention order of 9 July 2004.

49. On the same date the St Petersburg City Court held that it was impossible to examine the applicant’s appeals against the decisions of 27 May and 25 June 2004 by which his requests for release had been dismissed.

50. The applicant’s detention was further extended by the Vyborgskiy District Court on 23 November 2004, 25 February 2005, 23 May 2005 and on 15 July 2005. All these extension orders were based on the same grounds. Each time the applicant appealed. All these extension orders were upheld by the City Court.

51. On 4 October 2005 the applicant was found guilty and sentenced to five years’ imprisonment. His conviction was upheld by the St Petersburg City Court on appeal on 31 January 2006. On 12 March 2007 the applicant was released for good behaviour.

B. The applicants’ complaints to the Russian Constitutional Court

52. On 4 August 2003 Mr Biryuchenko and on 16 September 2004 Mr Oynas complained to the Russian Constitutional Court about the de facto extension of their detention after their case files had been sent by the prosecution authorities to the respective trial courts. The Constitutional Court examined their complaints together with similar complaints lodged by other individuals. In a Ruling adopted on 22 March 2005 the Constitutional Court 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 of detention, as defined in the court order, expires, the court shall decide on the extension of the detention, otherwise the accused person should 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 preventive measure applied at previous stages.

Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure 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 fourteen days, set a hearing and establish ‘whether the preventive measure 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 preventive measure has been set.

The prosecution, in its turn, while approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has 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 moment of transferal 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, pursuant to Articles 108 and 109 of the Code of Criminal Proceedings, [should] request the court to extend the period of detention.”

C. Mr Biryuchenko’s complaint to the General Prosecutor’s Office

53. On 1 August 2005 Mr Biryuchenko lodged a complaint with the General Prosecutor’s office. He submitted that between 19 September 2002, which was after his case had been referred for trial to the City Court, and 18 March 2003, he had been detained unlawfully (see paragraphs 10-16 above). Subsequently, his detention had been extended six times: on 18 March, 18 June, 18 September and 16 December 2003, on 16 March and 29 March 2004. He pointed out that he had appealed against all the extension orders, but the appeal court had failed to take his arguments into account. Relying on the ruling of the Constitutional Court of 22 March 2005, the applicant argued that in his case the courts had wrongly interpreted Article 255 of the new CCrP and had taken an unlawful decision on 18 March 2003. All the subsequent detention orders had also been unlawful. He requested the Prosecutor to lodge a request for supervisory review with the Supreme Court and apply for quashing of the extension orders.

54. On 21 September 2005 the General Prosecutor’s Office replied that the ambiguity of Article 255 allowed the courts to detain the defendants during six months without taking any decision in this respect. Therefore, when extending the applicant’s detention and dismissing his applications for release, the courts of first and second instances had not found any violation of law. Furthermore, the applicant had been released on 5 May 2004. Therefore, his right to liberty had been reinstated long before the adoption of the ruling of 22 March 2005 by the Constitutional Court. For these reasons, there had been no grounds to apply for a supervisory review of detention orders.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Russian Constitution

55. The Constitution guarantees the right to liberty (Article 22):

“1. Everyone has the right to liberty and personal integrity.

2. Arrest, placement in custody and detention are only permitted on the basis of a judicial decision. Prior to a judicial decision, an individual may not be detained for longer than forty-eight hours.”

B. The Code of Criminal Procedure

56. Since 1 July 2002 criminal-law matters have been governed by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001 - “the CCrP”).

57. “Preventive measures” or “measures of restraint” (меры пресечения) include an undertaking not to leave a town or region, personal surety, bail and detention (Article 98). If necessary, the suspect or accused may be asked to give an undertaking to appear (обязательство о явке) (Article 112).

58. 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 charge, information on the accused’s character, his or her profession, age, state of health, family status and other circumstances (Article 99).

59. Detention may be ordered by a court if the charge carries a sentence of at least two years’ imprisonment, provided that a less restrictive preventive measure cannot be applied (Article 108 § 1).

60. After arrest the suspect is placed in custody “during the investigation”. The maximum permitted period of detention “during the 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 “during the investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9).

61. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “during the trial”). Within fourteen days of receipt of the case file (if the defendant is in custody), the judge is required either: (1) to refer the case to a competent court; (2) to fix a date for a preliminary hearing (предварительное слушание); or (3) to fix a date for trial (Article 227). Upon receipt of the case file, the judge must determine, in particular, whether the measure of restraint applied should be lifted or changed (Articles 228 (3) and 231 § 2 (6)).

62. The period of detention “during the trial” is calculated up to the date the judgment is given. It 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).

63. 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 on the appeal within three days of its receipt (Article 108 § 10).

C. Case-law of the Constitutional Court

64. On 22 March 2005 the Constitutional Court emphasised the obligation of different state officials, particularly prosecutors, investigating authorities, courts and heads of detention facilities, to ensure that suspects and accused are detained only on the basis of a valid judicial decision and within the time-limit set by this decision or released immediately. It condemned the practice of holding defendants in detention solely on the ground that a bill of indictment had been lodged with the trial court; this interpretation of the relevant Articles of the CCrP was held incompatible with the Constitution and the European Court’s case-law.

THE LAW

I. JOINDER OF THE APPLICATIONS

65. The Court notes at the outset that all the applicants complained in particular that after their cases had been submitted to the trial court they were detained for approximately six months without a court order. Having regard to the similarity of the applicants’ grievances, the Court is of the view that, in the interests of the proper administration of justice, the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.

II. STRIKING OUT OF THE LIST

66. The Court notes that in his letter of 24 June 2010 the applicants’ representative in the Stepanov and Others case informed it that the first applicant (Mr Ilya Aleksandrovich Stepanov) had died. However, no information was provided concerning his heirs or whether the latter wished to pursue the application.

Article 37 § 1 of the Convention, in its relevant part, reads:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that...

67. Regard being had to the absence of any heirs who wish to pursue the application on behalf of this applicant or any reasons which would require a continuation of the examination of the case (see, by way of contrast, Karner v. Austria, no. 40016/98, § 28, ECHR 2003-IX), the Court, in so far as his complaints are concerned, strikes the application out of its list, in accordance with Article 37 § 1 (c) of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

68. The applicants complained as follows. In application no. 1253/04, Mr Biryuchenko alleged that his detention was unlawful between 19 September 2002 and 18 March 2003 and between 3 and 16 December 2003. In application no. 25902/05, Mr Leontyev and Mr Ponomarev complained that they were unlawfully detained between 11 and 12 November 2004, between 12 February and 11 April 2005 and from 11 April onwards. In application no. 40116/08, Mr Oynas complained that he was unlawfully detained between 27 February 2004 and 2 March, between 2 March and 29 April 2004 and from 29 April 2004 onwards.

69. They relied on Article 5 § 1 of the Convention which reads 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. Admissibility

70. As regards application no. 25902/05, the Government indicated that the applicants’ complaint concerning their detention between 11 and 12 November 2004 was lodged out of the six month period. They also noted that the applicants had never raised the issue of the unlawfulness of their detention during that period at the national level. Bearing in mind that this application was lodged on 9 June 2005, the Court cannot but agree with the Government and declare this part of the application inadmissible.

71. The Court further notes that in applications nos. 25902/05 and 40116/08, the applicants did not indicate the ending date of the period of their detention which they considered to be unlawful. Consequently, they are understood as complaining about the whole period of their detention. The Court should thus determine which periods of this detention should be taken into consideration.

1. Application no. 25902/05

72. The applicants complained that their detention from 12 February to 11 April 2005 and from 11 April onwards was unlawful. The Court observes that on 11 January 2005 the Lodeynopolskiy Town Court extended the applicants’ detention until 12 February 2005. The decisions of 14 February, 11 and 12 April 2005 only indicated that the measure of restraint should remain unchanged (see paragraphs 30-31 above). It was only on 25 July 2005 that the Lodeynopolskiy Town Court issued a new extension order. It is not alleged that this court was incompetent or acted outside of its powers. Consequently, the Court considers that after 25 July 2005 the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Application no. 40116/08

73. In this case, the applicant complained that his detention was unlawful between 27 February and 2 March 2004, 2 March and 29 April 2004 and from 29 April 2004 onwards. The Court observes that on 22 January 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 February 2004. The subsequent decisions only indicated that the measure of restraint should remain unchanged (see paragraphs 40-41 and 46 above). It was only on 9 July 2004 that a new extension order was issued by the Vyborgskiy District Court. It is not alleged that this court was incompetent or acted outside of its powers. Consequently, the Court considers that after 9 July 2004 the applicants’ complaint is manifestly ill-founded and must be rejected in accordance with Articles 35 §§ 3 (a) and 4 of the Convention.

B. Merits

74. As regards application no. 40116/08 lodged by Mr Oynas, the Government acknowledged a violation of Article 5 § 1 of the Convention but without indicating the period during which the applicant’s detention was unlawful. As regards application no. 25902/05 lodged by Mr Leontyev and Mr Ponomarev, the Government acknowledged that the applicants were detained without a court order between 12 and 14 February 2005 in breach of Article 5 § 1 of the Convention. However, they denied their responsibility for the rest of the applicants’ detention. Finally, as regards application no. 1253/04 lodged by Mr Biryuchenko, the Government limited themselves to a general statement that the applicant’s detention had always been in accordance with the Russian legislation.

75. The Court observes at the outset that in all cases the applicants complain that after their cases had been submitted to the trial court they were detained for approximately six months without a court order (for details see the Appendix). The Government had explained that at that time the domestic courts had interpreted Article 255 § 2 of the Code of Criminal Procedure as permitting detention of an accused without a court order for up to six months from the date of receipt of the case file by a court. A judicial order had been required only if detention “pending trial” exceeded six months. The Constitutional Court had subsequently condemned that practice as unconstitutional, finding that it was contrary to Article 5 § 1 of the Convention (see Yudayev v. Russia, no. 40258/03, § 56, 15 January 2009). The Court observes in this respect that the Constitutional Court’s Ruling referred to by the authorities in the Yudayev case was precisely the decision delivered following the complaints lodged by Mr Biryuchenko and Mr Oynas (see paragraph 52 above). In this context, the Court considers that it is not necessary to examine separately different periods complained of by Mr Leontyev, Mr Ponomarev and Mr Oynas in as much as they all fall under this six-month period.

76. The Court takes note of the admission made by the Government in the Oynas case. Having regard to its well-established practice (see Fursenko v. Russia, no. 26386/02, §§ 77-79, 24 April 2008; Lebedev v. Russia, no. 4493/04, §§ 52-59, 25 October 2007; Melnikova v. Russia, no. 24552/02, §§ 53-56, 21 June 2007; Belevitskiy v. Russia, no. 72967/01, §§ 86-93, 1 March 2007; Korchuganova v. Russia, no. 75039/01, §§ 55-59, 8 June 2006; Nakhmanovich v. Russia, no. 55669/00, §§ 67-68, 2 March 2006), the Court sees no reasons to reach a different conclusion in the present cases.

77. It therefore concludes that there has been a violation of Article 5 § 1 of the Convention on account of the applicants’ unlawful detention (for the details see Appendix).

78. The Court further notes that in the Biryuchenko case, the applicant also complained about the unlawfulness of his detention from 3 to 16 December 2003. The Court observes that on 3 December 2003 the Supreme Court of the Russian Federation quashed the extension order of 18 September 2003 and sent the matter back for reconsideration. It did not however indicate whether the applicant should remain in detention. The next detention order in respect of the applicant was only taken by the St Petersburg City Court on 16 December 2003 (see paragraphs 16-18 above).

79. The Court has already found violations of Article 5 § 1 (c) of the Convention in a number of cases against Russia concerning a similar set of facts (see, for example, Kuptsov and Kuptsova v. Russia, no. 6110/03, § 81, 3 March 2011). It does not see any reason to reach a different conclusion in the present case. Consequently, the Court finds that the detention of Mr Biryuchenko between 3 and 16 December 2003 was contrary to Article 5 § 1 (c) of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

80. The applicants in the Biryuchenko and Oynas cases further complained that their pre-trial detention was excessively long and not justified by the relevant and sufficient reasons. They 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.”

81. In both cases, the Government recognised that these complaints were admissible and acknowledged a violation of Article 5 § 3 of the Convention. The Court sees no reasons to hold otherwise.

82. Accordingly, the Court considers that in the present cases there has been a violation of Article 5 § 3 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION

83. The applicants in the Biryuchenko and Oynas cases further complained of the following deficiencies in the judicial review of their detention. Mr Biryuchenko complained of the impossibility to obtain judicial review of the lawfulness of his detention between 19 September 2002 and 18 March 2003 and in particular of the domestic courts’ failure to examine his applications for release of 15 July 2002, 20 September 2003 and 23 December 2002, as well as that of 8 December 2003 and the delay in the examination of his appeal against the decision of 18 March 2003 (see paragraphs 11-12, 14-15 and 16-17 above). Mr Oynas complained of the extension of his detention in his and his lawyer’s absence on 2 March and 29 April 2004 and the St Petersburg City Court’s refusal of 29 April 2004 to review the lawfulness of his detention (see paragraphs 40-41 above).

84. In the Biryuchenko case, the applicant relied on Article 5 § 4 and Article 13 of the Convention. As it has been the Court’s constant approach to consider Article 5 § 4 as the lex specialis in relation to the more general requirements of Article 13 (see Nikolova v. Bulgaria [GC], no. 31195/96, § 69, ECHR 1999-II), the Court will examine this complaint exclusively under Article 5 § 4, which reads as follows:

“4. 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. Admissibility

85. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

86. The Court notes that in the Oynas case the Government acknowledged a violation of Article 5 § 4 of the Convention. In the Biryuchenko case, the Government recognised that the applicant’s appeals against the extension orders of 18 March and 18 June 2003 were not examined speedily by the Supreme Court. Having regard to its well-established case-law and the circumstances of the cases, the Court does not see any reason to hold otherwise.

87. The Court further observes that in the Biryuchenko case the applicant also complained that he could not obtain the review of the lawfulness of his detention between 19 September 2002 and 18 March 2003. In particular, he complained that his applications for release of 15 July 2002, 20 September 2002 and 23 December 2002 had never been examined despite his attempts to complain about the St Petersburg City Court’s inactivity (see paragraphs 11, 14 and 15). He also complained that his application for release of 8 December 2003 had never been examined by the St Petersburg City Court. The Court has already found violations of the Convention regarding a similar set of facts (see Nakhmanovich v. Russia, cited above, §§ 81-84). It does not see any reason to hold otherwise in the present case.

88. Consequently, the Court finds a violation of Article 5 § 4 of the Convention on account of the above deficiencies in the judicial review of the applicants’ detention.

VI. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION

89. In application no. 25902/05, Mr Leontyev and Mr Ponomarev also complained of a violation of their right to presumption of innocence in that the Lodeynopolskiy Town Court stated in its decisions of 11 January 2005 that the applicants had committed the impugned offences (see paragraph 27 above). They relied on Article 6 § 2 of the Convention.

90. The Government acknowledged a violation of Article 6 § 2 of the Convention. Having regard to its case-law on the subject, the Court does not see any reason to hold otherwise (see Matijašević v. Serbia, no. 23037/04, §§ 47-51, ECHR 2006-X).

91. There has accordingly been a violation of Article 6 § 2 of the Convention.

VII. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

92. Lastly, the applicants raised additional complaints with reference to various Articles of the Convention. Having regard to all the material in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols in that part of their applications. It follows that the applications in this part must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

VIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

93. 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

94. In respect of non-pecuniary damage Mr Biryuchenko claimed 16,000 euros (EUR) for the period of his unlawful detention, EUR 2,000 for delays in examining his appeals and EUR 2,000 for the excessive length of his detention as well as EUR 350 for pecuniary damage corresponding to average salary he would have had if he was not unlawfully detained. Mr Leontyev and Mr Ponomarev claimed each EUR 5,000 and Mr Oynas claimed EUR 301,000 in respect of non-pecuniary damage.

95. In so far as the Government recognised a number of violations of the Convention, they admitted that the applicants have the right to compensation. However, the Government considered that the amounts claimed were excessive.

96. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by Mr Biryuchenko; it therefore rejects this claim. On the other hand, the Court accepts that the applicants suffered distress and frustration resulting in particular from their unlawful detention. Making its assessment on an equitable basis, it awards the applicants EUR 3,000 in respect of non-pecuniary damage each, plus any tax that may be chargeable on that amount.

B. Costs and expenses

97. In the Biryuchenko case, the applicant also claimed EUR 2,000 for costs and expenses incurred before the Court.

98. The Government indicated that the applicant had failed to provide any supporting document.

99. The Court notes that the applicant has not submitted any supporting documents. It accordingly dismisses this claim.

C. Default interest

100. The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Decides to strike out the application concerning Mr Stepanov;

3. Declares the complaints concerning the applicants’ detention without a court order as indicated in the Appendix, the length of pre-trial detention and deficiencies in judicial review of their detention in the Biryuchenko and Oynas cases and a violation of the right to a presumption of innocence in respect of Mr Leontyev and Mr Ponomarev in the Stepanov and Others case admissible and the remainder of the applications inadmissible;

4. Holds that there has been a violation of Article 5 § 1 of the Convention in all cases;

5. Holds that there has been a violation of Article 5 § 3 in the Biryuchenko and Oynas cases;

6. Holds that there has been a violation of Article 5 § 4 of the Convention in the Biryuchenko and Oynas cases;

7. Holds that there has been a violation of Article 6 § 2 of the Convention in respect of Mr Leontyev and Mr Ponomarev in the Stepanov and Others case;

8. Holds

(a) that the respondent State is to pay each of the applicants, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into national currency at the rate applicable at 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

9. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 11 December 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Prebensen Khanlar Hajiyev
Acting Deputy Registrar President

	Application No.	Lodged on	Applicant Date of birth Place of residence	Represented by	Detention period complained of
1.	1253/04	11/12/2003	Yuriy Aleksandrovich BIRYUCHENKO 06/06/1964 Vsevolozhsk	Roman Nikolayevich CHEREMCHUK	Last detention order “pending investigation” expired on 18/09/2002. Case sent to the trial court on 19/09/2002. First extension order “pending trial” issued on 18/03/2003.
2.	25902/05	09/06/2005	Ilya Aleksandrovich STEPANOV 29/07/1978 Tikhvin Aleksandr Anatolyevich LEONTYEV 08/04/1964 Tikhvin Roman Sergeyevich PONOMAREV 06/12/1975 Tikhvin	Aleksandr Nikolayevich MARCHENKO	Last detention order “pending investigation” expired on 12/02/2005. Case sent to the trial court on 04/02/2005. First extension order “pending trial” issued on 25/07/2005.
3.	40116/08	10/09/2004	German Leonidovich OYNAS 19/04/1966 St Peterbourg	Oksana Vladimirovna PREOBRAZHENSKAYA	Last detention order “pending investigation” expired on 26/02/2004. Case sent to the trial court on 26/02/2004. First extension order “pending trial” issued on 09/07/2004.

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You are here: BAILII >> Databases >> European Court of Human Rights >> BIRYUCHENKO AND OTHERS v. RUSSIA - 1253/04 25902/05 40116/08 - Committee Judgment [2014] ECHR 1382 (11 December 2014) URL: http://www.bailii.org/eu/cases/ECHR/2014/1382.html Cite as: [2014] ECHR 1382