DEVTEROV v. RUSSIA - 80015/12 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 665 (19 July 2016)

In the case of Devterov v. Russia,

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

          Helena Jäderblom, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 28 June 2016,

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

PROCEDURE

1. The case originated in an application (no. 80015/12) 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 Dmitriy Mikhaylovich Devterov (“the applicant”), on 29 October 2012.

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

3. On 18 February 2014 the complaint concerning the length of pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1980 and lives in Kushchevskaya, Krasnodar Region.

5. On 9 December 2010 the applicant was charged in absentia with accessory to murder and his name was put on the wanted list.

6. On 16 December 2010 the Kushchevskiy District Court of the Krasnodar Region issued a detention order against the applicant in absentia.

7. On 21 January 2011 the applicant reported to the police station where he was arrested.

8. On 29 March 2011 the District Court remanded the applicant in custody. In particular the court held, as follows:

“... [the applicant] is suspected of having committed an extremely serious offence entailing 8 to 20 years’ custodial sentence or life imprisonment. As it has been established that during investigation [the applicant] stated that he intended to leave Russia and talked on the phone with a person living in Geneva ..., if released, [the applicant] might abscond, commit another offence, and threaten witnesses or other parties to criminal proceedings, destroy evidence or in any other way interfere with the investigation...”.

9. On 19 April 2011 the District Court extended the applicant’s pre-trial detention on the following grounds:

“[The applicant] is accused of an extremely serious offence entailing 10 years’ imprisonment. The case materials contain evidence confirming his involvement in crimes. Moreover, ... he may abscond or, if released, commit other crimes. These circumstances existed as of the date of [the applicant’s] placement into custody and have not changed at the present time. ... Taking into account that it is necessary to conduct numerous investigative activities, the court shall grant the investigator’s request [to extend the applicant’s detention]”.

10. The applicant remained in detention pending investigation and trial. The courts extended his detention, using the above formula. The courts referred also to the applicant’s family status, personality, state of health, possibility to put pressure on witnesses and interfere with the investigation, absence of job. In particular, on 25 January 2012 the court held as follows:

“... taking into account the personality of the accused, his family status, state of health and other circumstances, the court shall grant the investigator’s request and extend [the applicant’s] detention”.

11. The applicant lodged appeals against some detention orders but the courts rejected them.

12. On 2 November 2011 the applicant was additionally charged with membership in a criminal gang, six counts of unlawful transportation of fire arms and ammunition, attempted murder and murder.

13. In October 2012 the applicant, along with two co-defendants, was committed to stand trial before the Krasnodar Regional Court.

14. On 7 June 2013 the applicant was released.

15. On 19 June 2013 the Krasnodar Regional Court acquitted the applicant of all charges and held that the applicant be informed of the right to rehabilitation.

16. On 30 September 2013 the Supreme Court of the Russian Federation upheld the judgment of 19 June 2013 on appeal.

17. The applicant brought a claim against the Federal Treasury seeking compensation for pecuniary damage (legal expenses).

18. On 3 June 2014, the Regional Court awarded the applicant 680,600 Russian roubles as reimbursement of legal fees.

II. RELEVANT DOMESTIC LAW

19. Article 133 of the Code of Criminal Procedure governs the exercise of the “right to rehabilitation” which is, in essence, the restoration of the person to the status quo ante following an acquittal or discontinuance of the criminal proceedings. This right includes the right to compensation in respect of pecuniary and non-pecuniary damage and the restoration of labour, pension, housing and other rights. The damage must be compensated for in full, irrespective of the fault of the investigator, prosecutor or court (paragraph 1). Paragraph 2 confers the “right to rehabilitation” on defendants who have been acquitted, against whom charges have been dropped, in respect of whom proceedings have been discontinued or whose convictions have been quashed in their entirety or in part. However, no right to compensation arises where the prosecution is terminated on “non-rehabilitative” grounds, such as in the case of an amnesty or where the prosecution has become time-barred (Article 133 paragraph 4). Paragraph 3 provides that “any individual who has been unlawfully subjected to preventive measures in criminal proceedings shall have the right to rehabilitation”. In a judgment acquitting an individual a court has to mention explicitly that he has the right to “rehabilitation” (Article 134). A claim for compensation of pecuniary damage is to be lodged with the same authority which issued the decision to acquit or the decision to terminate the criminal prosecution (Article 135 § 2), whereas any claims for monetary compensation of non-pecuniary damage are to be lodged with civil courts and examined under the relevant provisions of the Code of Civil Procedure (Article 136 § 2).

THE LAW

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

20. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. Article 5 § 3 provides as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

21. The Government submitted that, having been acquitted, the applicant could exercise his “right to rehabilitation” under Article 133 of the Code of Criminal Procedure. The acknowledgment of the applicant’s “right to rehabilitation” in the acquittal automatically implied that the State had acknowledged a violation of the applicant’s right under Article 5 of the Convention. As to the redress, the Government stated that the applicant should have filed a civil claim for compensation with the domestic courts.

22. The applicant maintained his complaint.

A. Admissibility

23. The Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

24. In recent cases against Russia (see Shalya v. Russia [Committee], no. 27335/13/05, §§ 11-23, 15 March 2013, Shkarupa v. Russia, no. 36461/05, §§ 74-78, 15 January 2015, and Lyubushkin v. Russia, no. 6277/06, §§ 48-53, 22 October 2015) the Court found that in the rehabilitation proceedings, the Russian authorities did not have to examine, still less acknowledge, at least in substance, that the applicant’s detention had been formally defective, or that it had been based on insufficient reasoning, or had exceeded a reasonable time. Furthermore, the award of compensation was subject to the fulfilment of specific conditions not required under Article 5 § 3, specifically the applicant’s acquittal or the discontinuation of the proceedings. The only grounds for awarding the applicant compensation were the termination of the criminal proceedings against him rather than any alleged procedural irregularity in the pre-trial detention. These grounds for compensation did not correspond to the basis of the applicant’s complaint under Article 5 § 3 and the alleged violation could not therefore be redressed in these proceedings (see also, mutatis mutandis, Elğay v. Turkey, no. 18992/03, § 32, 20 January 2009, and Mekiye Demirci v. Turkey, no. 17722/02, § 70, 23 April 2013).

25. In the present case the Regional Court acquitted the applicant and held that the applicant should be informed of his right to rehabilitation. The Court discerns nothing in the relevant judgment of 19 June 2013 that would allow it to conclude that the authorities acknowledged, either expressly or implicitly, that the applicant’s pre-trial detention had been excessive in its duration or that the decisions ordering his continued detention had not been based on relevant and sufficient reasoning. Nor did the judgment of 3 June 2014 awarding the applicant a monetary compensation contain acknowledgment of a violation of the applicant’s right under Article 5 § 3.

26. Furthermore, the redress awarded to the applicant resulted from the fact that he was acquitted rather than from any finding of a violation of the right on which he relies before the Court. The compensation awarded to the applicant cannot be considered to constitute recognition of or redress for the violation of the Convention rights alleged by him in the present application. It therefore cannot suffice to deprive the applicant of his status as a “victim” within the meaning of Article 34 of the Convention (see Kučera v. Slovakia, no. 48666/99, § 79, 17 July 2007, Shalya v. Russia, cited above, § 21).

27. Accordingly, the Court considers that in the absence of any acknowledgement and adequate redress the applicant still can claim to be a “victim” of a violation of Article 5 § 3 of the Convention.

28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds, it must therefore be declared admissible.

B. Merits

29. The Court notes that the period to be taken into consideration lasted from 21 January 2011, the date of the applicant’s arrest, to 7 June 2013, the date of his release. It lasted, accordingly, two years, four months, and sixteen days.

30. The Court has already, on a large number of occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).

31. Having regard to its case-law in similar cases and to the facts of the present case, the Court finds that there has been a violation of Article 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The applicant claimed 442,011.35 euros (EUR) in respect of non-pecuniary damage.

34. The Government considered his claims unsubstantiated.

35. The Court observes that the applicant spent over two years in custody awaiting determination of the criminal charge against him, his detention not being based on sufficient grounds. The Court notes that the applicant was awarded compensation for non-pecuniary damage as a result of his acquittal. However, that award was made on other legal grounds than those related to violations found by the Court. Making its assessment on an equitable basis, it awards EUR 2,500 to the applicant in compensation for non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

36. The applicant claimed reimbursement of legal expenses in the amount of EUR 75,922.53.

37. The Court notes that the applicant did not substantiate his claim. Accordingly, there is no call to make an award under this head.

C. Default interest

38. 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. Declares the complaint concerning the excessive duration of pre-trial detention admissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date of the judgment, EUR 2,500 (two thousand five hundred euros) plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom
Deputy Registrar President

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