DVORETSKIY v. RUSSIA - 57426/14 (Judgment : Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)) [2017] ECHR 713 (25 July 2017)

In the case of Dvoretskiy v. Russia,

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

          Luis López Guerra, President,
          Dmitry Dedov,
          Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 July 2017,

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

PROCEDURE

1. The case originated in an application (no. 57426/14) 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 Yuriy Valentinovich Dvoretskiy (“the applicant”), on 11 April 2011.

2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. On 17 March 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1966 and lived before his arrest in the Arkhangelsk Region. He is currently detained in the town of Severodvinsk.

5. On an unspecified date the applicant, while being on the wanted list after having breached his undertaking not to leave the place of his residence, was arrested on the charges of violent acts against a public official (Article 318 § 1 of the Criminal Code of the Russian Federation). On 18 May 2010 the Severodvinsk Town Court of the Arkhangelsk Region authorised his detention.

6. On 2 September 2010 the applicant asked the Town Court to apply a non-custodial restraint measure to him. The applicant and his lawyer attended the hearing and made oral submissions. The Town Court dismissed the motion for release, having referred, in particular, to the applicant’s criminal record, which included two convictions for having mounted threats of violence against a judge, an offence under Article 296 of the Criminal Code, and for contempt of court, punishable under Article 297 of the Criminal Code. The applicant appealed.

7. In the meantime, on 20 September 2010 the applicant was convicted as charged.

8. On 12 October 2010 the Arkhangelsk Regional Court upheld the decision of the Town Court of 2 September 2010. With reference to its discretional powers under Article 379 of the Code of Criminal Procedure of the Russian Federation the appeal court rejected the applicant’s leave to appear, and held the hearing in his absence.

II. RELEVANT DOMESTIC LAW

9. For the relevant domestic law, see Artemov v. Russia, no. 14945/03, §§ 56-64, 3 April 2014.

THE LAW

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

10. The applicant complained that his pre-trial detention had been unreasonably lengthy and unjustified. This complaint falls under Article 5 § 3 of the Convention, which, insofar as relevant, 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.”

11. The Government argued that the complaint was inadmissible.

12. Having examined all the material before it, the Court notes that, given the relatively short duration of the applicant’s detention (which lasted slightly longer than five months), the existence of a reasonable suspicion of the applicant’s involvement in a violent offence against a State official and the existence of a serious risk of his re-offending, absconding or interfering with justice, given his criminal history of violent offences against the judiciary and the pattern of his behaviour, including a breach of non-custodial measure in separate criminal proceedings, it cannot be said that the domestic courts had failed to duly consider all relevant factors or that they did not give “relevant” and “sufficient” reasons to justify the applicant’s detention, or that they failed to display “special diligence” in the conduct of the proceedings (see, for example, Topekhin v. Russia, no. 78774/13, 10 May 2016; Sopin v. Russia, no. 57319/10, 18 December 2012; and Isayev v. Russia, no. 20756/04, 22 October 2009). The Court is satisfied that the domestic courts cited specific facts in support of their conclusion that the applicant was liable to interfere with justice or abscond. They also considered a possibility of applying alternative measures of restraint, but found them to be inadequate.

13. In view of the above, the Court finds that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

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

14. The applicant complained that the appeal review of the lawfulness of his pre-trial detention on 12 October 2010 had been carried in his absence. This complaint falls to be examined under Article 5 § 4 of the Convention, which reads 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 Government’s request for the case to be struck out under Article 37 of the Convention

15. On 13 July 2016 the Government submitted a unilateral declaration inviting the Court to strike the case out of its list. They acknowledged that the appeal hearing held by the Regional Court on 12 October 2010 fell short of the standards of Article 5 § 4 of the Convention and offered to pay the applicant 1,000 EUR as just satisfaction.

16. On 14 September 2016 the applicant rejected the Government’s offer, asking the Court to examine his case on the merits.

17. Having studied the terms of the Government’s declaration, the Court is satisfied that the Government have acknowledged that the applicant’s absence from the appeal hearing on 12 October 2010 entailed a breach of Article 5 § 4 of the Convention. However, the amount of compensation appears to be lower than what the Court generally awards in cases featuring complaints about deficiencies in appeal review of detention (see Martins O’Neill Pedrosa v. Portugal, no. 55214/15, 14 February 2017; Manerov v. Russia, no. 49848/10, 5 January 2016; Šablij v. Slovakia, no. 78129/11, 28 April 2015; Akhadov v. Slovakia, no. 43009/10, 28 January 2014). Without prejudging its decision on the admissibility and merits of the case, the Court considers that the declaration does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case.

18. For the above reasons, the Court rejects the Government’s request to strike this part of the application out of its list under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the complaint (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003-VI).

B. Admissibility

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

C. Merits

20. The Court recalls that it has previously found a violation of Article 5 § 4 of the Convention in a number of cases against Russia, where the appeal review of the lawfulness of applicants’ detention was carried out in the absence of an applicant and his counsel (see Naimdzhon Yakubov v. Russia, no. 40288/06, §§ 73-76, 12 November 2015; Kuptsov and Kuptsova v. Russia, no. 6110/03, §§ 99-103, 3 March 2011; Gubin v. Russia, no. 8217/04, §§ 64-68, 17 June 2010). Moreover, the Court does not lose sight that the Government acknowledged that the appeal review of the applicant’s detention on 12 October 2010 fell short of the requirements of Article 5 § 4 of the Convention.

21. Having regard to the above, the Court considers that proceedings on review of the lawfulness of the applicant’s detention did not comply with the “equality of arms” requirement under Article 5 § 4 of the Convention. There has accordingly been a violation of that provision.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

22. 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.”

23. Regard being had to the documents in its possession and to the case-law cited above, the Court awards the applicant 2,500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable.

24. 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. Rejects the Government’s request to strike a part of the application out of its list of cases under Article 37;

2. Declares the applicant’s complaint concerning his inability to participate in the appeal hearing of 12 October 2010 on review of his detention admissible and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 5 § 4 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand and five hundred euros) 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.

Done in English, and notified in writing on 25 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Luis López Guerra
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DVORETSKIY v. RUSSIA - 57426/14 (Judgment : Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)) [2017] ECHR 713 (25 July 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/713.html Cite as: CE:ECHR:2017:0725JUD005742614, [2017] ECHR 713, ECLI:CE:ECHR:2017:0725JUD005742614