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FIRST
SECTION
CASE OF YELIZAROV v. RUSSIA
(Application
no. 36551/07)
JUDGMENT
STRASBOURG
26
March 2009
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 Yelizarov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 5 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36551/07) 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 Vladimirovich
Yelizarov (“the applicant”), on 18 July 2007.
- The
applicant was represented by Mr D. Agranovskiy, a lawyer practising
in the Moscow region. The Russian Government (“the Government”)
were initially represented by Ms V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights, and subsequently by their Representative, Mr
G. Matyushkin.
- The
applicant alleged that his detention pending trial had been unlawful
and excessively long
- On
7 January 2008 the President of the First Section decided to
communicate the complaint about the allegedly excessive length of
detention to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3). The President made a decision on priority
treatment of the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Moscow.
A. Background information
- The
applicant was a member of a public association, the National
Bolshevik Party. On 15 November 2005 the Supreme Court of the Russian
Federation ordered its dissolution. On 19 January 2006 the Federal
Registration Service of the Ministry of Justice refused an
application for registration of a political party by the same name.
Party members challenged the refusal before Taganskiy District Court,
Moscow.
- On
13 April 2006 fifteen party members, including the applicant, came to
Taganskiy District Court for a hearing concerning the refusal to
register the National Bolshevik Party. The applicant alleged that
near the court building they had been attacked by a group of forty
people and had had to defend themselves. According to the Government,
the party members, including the applicant, had assaulted passers-by
with gas guns and rubber truncheons.
B. Criminal proceedings against the applicant
- On
11 April 2007 the applicant was arrested. The arresting officer
indicated in his report that witnesses had identified the applicant
as one of the perpetrators of the assault. On the same day he was
charged with participation in mass disorders involving the use of gas
guns and assault and battery, an offence under Article 213 § 2
of the Criminal Code.
- On
12 April 2007 Tverskoy District Court, Moscow, formally remanded the
applicant in custody, finding that he had been charged with a serious
criminal offence and that he had no registered place of residence in
Moscow or permanent employment. The court concluded that he might
abscond, interfere with the proceedings or reoffend.
- In
his grounds of appeal of 13 April 2007 the applicant submitted that
he had been arrested a year after the fight. He had had plenty
opportunity to abscond, reoffend or interfere with the investigation
during that year if he had wished. The fact that he had not fled from
justice proved that he had no such intention. He had no criminal
record, had permanent residence and employment in Moscow, positive
references, a spouse suffering from epilepsy and a child. He was the
only breadwinner in his family. He asked to be released on bail.
- On
7 May 2007 Moscow City Court upheld the detention order on appeal,
finding that it had been lawful and justified.
- On
an unspecified date the applicant was committed for trial before
Taganskiy District Court.
- On 22 May 2007 Taganskiy District Court scheduled a
preliminary hearing for 29 May 2007 and ordered that the applicant
should meanwhile remain in custody. It referred to the gravity of the
charge, the applicant's character and his record of administrative
offences, which included commission of several disorderly acts, and
concluded that the applicant might abscond or reoffend. The
applicant's arguments that he had a child, that his wife suffered
from epilepsy and that he himself needed medical assistance were
insufficient to warrant release.
- The
applicant appealed, repeating the arguments set out in his grounds of
appeal of 13 April 2007. On 11 July 2007 the Moscow City Court upheld
the decision, finding that it had been lawful, well-reasoned and
justified.
- On
24 May 2007 a member of Parliament offered his personal guarantee
that the applicant would not abscond.
- On
29 May 2007 Taganskiy District Court returned the case to the
investigator, ordering that the applicant's case be joined with the
cases of six other members of the National Bolshevik Party who had
been charged in connection with the same events of 13 April 2006. It
further ordered that the applicant should remain in custody. It
referred to the gravity of the charge and his record of
administrative offences. The applicant's character and the
circumstances surrounding the commission of the imputed offence gave
reasons to believe that he might abscond, reoffend or interfere with
the proceedings.
- On
the same day the applicant's case was joined with the cases of six
other persons, who had allegedly acted in conspiracy with the
applicant.
- On 28 June 2007 Tverskoy District Court extended the
applicant's detention until 6 August 2007, referring to the gravity
of the charge, his record of administrative offences, the need for a
further investigation and the risk of the applicant's absconding or
interfering with the investigation. It found that the applicant's
arguments about his good character and family situation were not
convincing. Counsel for the applicant was absent from the hearing.
- The
applicant appealed, repeating the arguments set out in his grounds of
appeal of 13 April 2007. He further complained that his counsel had
not been notified about the hearing. On an unspecified date his
appeal was dismissed by Moscow City Court.
- In
July 2007 seven defendants, including the applicant, were committed
for trial.
- On
26 July 2007 Taganskiy District Court scheduled a preliminary hearing
for 8 August 2007 and ordered that the defendants should meanwhile
remain in custody. The court found that the defendants had been
charged with a serious offence committed by an organised group some
members of which had not yet been identified, and concluded that they
might abscond or intimidate the victims and witnesses. It further
noted that the defendants' assurances that they had no intention of
absconding were unconvincing and held that there was no reason to
apply a more lenient preventive measure.
- On
8 August 2007 Taganskiy District Court held a preliminary hearing and
ordered that all defendants should remain in custody for the same
reasons as before.
- On
24 September 2007 Moscow City Court upheld the decisions of 26 July
and 8 August 2007 on appeal, finding that they had been lawful and
justified.
- In
September 2007 the applicant and his co-defendants lodged
applications for release with Taganskiy District Court. On 12
September 2007 Taganskiy District Court rejected their applications.
It noted that the defendants' arguments had already been examined and
rejected many times when extension orders had been issued. It found
that the grounds for the defendants' detention mentioned in the
extension orders were still pertinent and it was still necessary to
hold them in custody. The defendants had been charged with a serious
criminal offence committed by an organised group, some members of
which had not yet been identified. Given the gravity of the charges
against them, they might abscond, reoffend or interfere with the
establishment of the truth if released.
- On
12 December 2007 Moscow City Court upheld the decision on appeal.
- On 26 December 2007 Taganskiy District Court extended
the defendants' detention until 12 April 2008. It found that the
grounds for their detention mentioned in the previous extension
orders were still pertinent and a risk remained of their absconding,
reoffending or obstructing the justice. The court also noted that the
defendants' arguments about the absence of corpus delicti in
their actions and about the lack of evidence of their involvement in
the commission of the imputed offence were without substance because,
in extending the defendants' detention, the court could not make any
findings as to their guilt or innocence.
- The
applicant appealed, arguing that the District Court's conclusions had
been hypothetical. It had issued a collective detention order and had
not taken into account the personal circumstances of each defendant.
In particular, it had disregarded the applicant's arguments that he
had no criminal record, had positive references, a permanent place of
residence and employment, and was the only breadwinner for his ailing
wife and minor daughter. He had offered to post bail and had provided
the District Court with the personal surety of a member of
Parliament. He finally submitted that during the year that had passed
between the imputed events and his arrest he had not made any
attempts to abscond or interfere with the investigation. Therefore,
there were no reasons to believe that he would do it at the advanced
stage of the proceedings.
- On
12 March 2008 Moscow City Court upheld the extension order on appeal,
finding that it had been lawful and justified, as there had been no
reason to release the defendants.
- On
24 March 2008 Taganskiy District Court convicted the defendants as
charged and sentenced the applicant to one year and six months'
imprisonment.
II. RELEVANT DOMESTIC LAW
-
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).
- “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).
- 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, reoffend 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).
- 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).
- After arrest the suspect is placed in custody “during
the investigation”. The period of detention during the
investigation may be extended beyond six months only if the detainee
is charged with a serious or particularly serious criminal offence.
No extension beyond eighteen months is possible (Article 109 §§
1-3). The period of detention “during the investigation”
is calculated to the day when the prosecutor sends the case to the
trial court (Article 109 § 9).
- From
the date the prosecutor forwards the case to the trial court, the
defendant's detention is “before the court” (or “during
the trial”). The period of detention “during the trial”
is calculated 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The applicant complained under Article 5 §
1 (c) of the Convention that there had been no grounds to detain him
and that the domestic courts had not had due regard to the defence's
arguments. Under Article 5 § 3, he complained that his right to
trial within a reasonable time had been infringed and alleged that
detention orders had not been founded on sufficient reasons. The
relevant parts of Article 5 read 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;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and 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. Admissibility
- As
regards the applicant's complaint that his detention was unlawful,
the Court notes that on 12 April 2007 Tverskoy District Court,
Moscow, remanded the applicant in custody because of the gravity of
the charges against him. The applicant's detention was subsequently
extended on several occasions by the domestic courts.
- The
domestic courts acted within their powers in making those decisions
and there is nothing to suggest that they were invalid or unlawful
under domestic law. The question whether the reasons for the
decisions were sufficient and relevant is analysed below in
connection with the issue of compliance with Article 5 § 3
(compare Khudoyorov v. Russia, no. 6847/02, §§
152 and 153, ECHR 2005-... (extracts)).
- The
Court finds that the applicant's detention was compatible with the
requirements of Article 5 § 1 of the Convention. It follows that
this complaint must be rejected as manifestly ill-founded pursuant to
Article 35 §§ 3 and 4 of the Convention.
- As
regards the applicant's complaint that his right to trial within a
reasonable time or to release pending trial had been infringed, the
Court finds that it is not manifestly ill-founded within the meaning
of Article 35 § 3 of the Convention. It further notes that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that the decisions to remand the applicant in
custody had been lawful and justified. The domestic courts had taken
into account that the applicant had been charged with a serious
criminal offence, had not lived at his registered place of residence
in the Rostov region and had no residence registration in Moscow.
Therefore, there had been a risk that he might abscond if released.
Further, the domestic courts had referred to the danger of
reoffending, that danger being gauged by reference to his membership
of the National Bolshevik Party. That Party had been recognised as an
extremist organisation by a Russian court and had been banned. Its
members had resorted to radical and violent action to express their
political views and many of them had been convicted or accused of
criminal offences. The applicant had been previously fined in
administrative proceedings for commission of disorderly acts, which
proved that he was likely to reoffend. The domestic courts had also
taken into account that the imputed offence had been committed by an
organised group. It had been therefore necessary to hold the
applicant in custody to prevent his obstructing the establishment of
the truth by communication of the details of the investigation to his
accomplices. Finally, the Government submitted that the domestic
courts had carefully examined the applicant's arguments and had found
them insufficient to warrant release. Thus, as the applicant had no
permanent income, his argument regarding his having a child had
rightly been considered irrelevant by the domestic courts. In the
Government's view, the applicant's pre-trial detention had been
founded on “relevant and sufficient” reasons.
- The
applicant considered that the domestic courts had not advanced
“relevant and sufficient” reasons to hold him in custody.
He had not fled from justice during the year that had passed between
the fight and his arrest, although he had had plenty of opportunity
to do so if he wished. He considered himself the victim rather than
the perpetrator of the attack and was interested in cooperating with
the investigation to assist them in establishing the truth. He had no
criminal record, had a permanent place of residence and permanent
employment and was the only breadwinner for his ailing wife and his
daughter. He had offered to post bail and had provided the courts
with the personal surety of a member of Parliament. Therefore there
had been no risk of his absconding. Nor could he interfere with the
investigation, as he had been arrested after the investigation had
been completed. He further argued that his membership of the National
Bolshevik Party had not given rise to a danger of reoffending. The
members of the National Bolshevik Party had never resorted to
violence. All criminal proceedings against them had been politically
motivated and they had been persecuted for their political views and
membership of an opposition organisation, the National Bolshevik
Party. The applicant concluded that the domestic courts had extended
his detention without demonstrating the existence of specific facts
in support of their conclusion that he might abscond, interfere with
the investigation or reoffend.
2. The Court's assessment
(a) General principles
- The
Court reiterates that the 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).
- The presumption is in favour of release. As the Court
has consistently held, the second limb of Article 5 § 3
does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or granting him
provisional release pending trial. Until his conviction, the accused
must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his provisional release once
his continued detention ceases to be reasonable. A person charged
with an offence must always be released pending trial unless the
State can show that there are “relevant and sufficient”
reasons to justify the continued detention (see, among other
authorities, Castravet v. Moldova, no. 23393/05,
§§ 30 and 32, 13 March 2007; McKay v. the
United Kingdom [GC], no. 543/03, § 41, ECHR
2006-...; Jabłoński v. Poland,
no. 33492/96, § 83, 21 December 2000; and
Neumeister v. Austria, 27 June 1968, § 4,
Series A no. 8). Article 5 § 3 of the Convention
cannot be seen as unconditionally authorising detention provided that
it lasts no longer than a certain period. 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 (extracts)).
- It
is incumbent on the domestic authorities to establish the existence
of specific facts relevant to the grounds for continued detention.
Shifting the burden of proof to the detained person in such matters
is tantamount to overturning the rule of Article 5 of the Convention,
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 Rokhlina v.
Russia, no. 54071/00, § 67, 7 April 2005, and
Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July
2001). The national judicial authorities must examine all the facts
arguing for or against the existence of a genuine requirement of
public interest justifying, with due regard to the principle of the
presumption of innocence, a departure from the rule of respect for
individual liberty, and must set them out in their decisions
dismissing the applications for release. It is not the Court's task
to establish such facts or to take the place of the national
authorities who ruled on the applicant's detention. It is essentially
on the basis of the reasons given in the domestic courts' decisions
and of the true facts mentioned by the applicant in his appeals that
the Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 of the Convention (see Korchuganova
v. Russia, no. 75039/01, § 72, 8 June 2006;
Ilijkov, cited above, § 86; and Labita, cited
above, § 152).
(b) Application to the present case
- The
applicant was arrested on 11 April 2007. On 24 March 2008 the trial
court convicted him as charged. Thus, the period to be taken into
consideration lasted slightly less than a year.
- Although
the applicant denied having participated in any criminal activity,
the Court notes that witnesses identified him as one of the
perpetrators of the assault. It accepts therefore that his detention
could have initially been warranted by a reasonable suspicion of his
involvement in the commission of a criminal offence. It remains to be
ascertained whether the judicial authorities gave “relevant”
and “sufficient” grounds to justify the applicant's
continued detention and whether they displayed “special
diligence” in the conduct of the proceedings.
- The
judicial authorities relied, in addition to the reasonable suspicion
against the applicant, on the risk of his absconding, reoffending or
obstructing the course of justice. In this respect they referred to
the gravity of the charge, the absence of a registered place of
residence or permanent employment in Moscow, his record of
administrative offences, and the fact that the imputed offence had
been committed by an organised group.
- The
gravity of the charge was the main factor in the assessment of the
applicant's potential to abscond, reoffend or obstruct the course of
justice. The Court has repeatedly held that, although the severity of
the sentence faced is a relevant element in the assessment of the
risk of an accused absconding or reoffending, the need to continue
deprivation of liberty cannot be assessed from a purely abstract
point of view, taking into consideration only the seriousness of the
offence. Nor can continuation of the detention be used to anticipate
a custodial sentence (see Letellier v. France, judgment
of 26 June 1991, Series A no. 207, § 51; see also Panchenko
v. Russia, no. 45100/98, § 102, 8 February
2005; Goral v. Poland, no. 38654/97, § 68, 30
October 2003; and Ilijkov, cited above, § 81). This
is particularly relevant in the Russian legal system where the
characterisation in law of the facts – and thus the sentence
faced by the applicant – is determined by the prosecution
without judicial review of the issue whether the evidence that has
been obtained supports a reasonable suspicion that the applicant has
committed the alleged offence (see Govorushko v. Russia,
no. 42940/06, § 48, 25 October 2007). The
domestic courts explicitly refused to consider the state of evidence
against the applicant or verify the persistence of reasonable
suspicion of his involvement in the commission of the imputed offence
(see paragraph 26 above).
- Another
ground for the applicant's detention was his record of administrative
offences. The Court accepts that that factor was relevant in
assessing the danger of reoffending. Such a danger, if convincingly
established, may lead the judicial authorities to place and leave a
suspect in detention in order to prevent any attempts to commit
further offences. It is however necessary, among other conditions,
that the danger be a plausible one and the measure appropriate, in
the light of the circumstances of the case and in particular the past
history and the personality of the person concerned (see Clooth v.
Belgium, judgment of 12 December 1991, Series A
no. 225, § 40). In the cases of Clooth v. Belgium
and Kolev v. Bulgaria (see below) the Court found that the
previous criminal record did not justify the applicant's detention
because the offences which had given rise to the applicant's previous
convictions were non-violent and were not comparable, either in
nature or degree of seriousness, to the charges preferred against him
in the contested proceedings (see Clooth, cited
above, § 40, and Kolev v. Bulgaria, no. 50326/99,
§§ 60-61, 28 April 2005). In the present case the
applicant's record included only minor non-violent administrative
offences and he had no criminal record. The Court considers that the
applicant's record of administrative offences did not justify his
continued detention (see, for similar reasoning, Aleksey Makarov
v. Russia, no. 3223/07, § 51, 12 June 2008).
- The
domestic courts also referred to the fact that the imputed offence
had been committed by a group of people acting in criminal
conspiracy. The Court observes that he fact that a person is charged
with acting in criminal conspiracy is not in itself sufficient to
justify long periods of detention; his personal circumstances and
behaviour must always be taken into account (see Aleksey Makarov,
cited above, § 50, and Popkov v. Russia, no. 32327/06,
§ 62, 15 May 2008). There is no indication in the present case
that before his arrest the applicant had made any attempts to
intimidate witnesses or to obstruct the course of the proceedings in
any other way. In such circumstances the Court has difficulty
accepting that there was a risk of interference with the
administration of justice at the later stages of the proceedings.
Such risk was bound to gradually decrease as the trial proceeded and
the witnesses were interviewed (compare Miszkurka v. Poland,
no. 39437/03, § 51, 4 May 2006) The Court is not
therefore persuaded that compelling reasons existed for a fear that
the applicant would interfere with witnesses or otherwise hamper the
investigation of the case, and certainly not such as to outweigh his
right to trial within a reasonable time or release pending trial.
- The
only other ground for the applicant's continued detention was the
District Court's brief reference to the applicant's “character”,
as typified by his lack of a permanent place of residence or
employment in Moscow. The applicant consistently maintained that he
lived and worked in Moscow on a permanent basis. It is not necessary
for the Court to determine the applicant's residence and employment
situation. Even assuming that he did not have a permanent place of
residence in Moscow and was unemployed, the mere lack of a fixed
residence or permanent employment does not give rise to a danger of
absconding or reoffending (see Pshevecherskiy v. Russia,
no. 28957/02, § 68, 24 May 2007). In the present case, the
domestic courts did not point to any aspects of the applicant's
character or behaviour that would justify their conclusion that he
presented a persistent risk of absconding, reoffending or interfering
with the proceedings. The applicant, on the other hand, constantly
invoked the facts mitigating such risks. However, the domestic courts
devoted no attention to discussion of the applicant's arguments that
he had positive references, was in frail health and was the only
breadwinner for his ailing spouse and a child. Nor did they address
the fact that the applicant had not fled or interfered with the
investigation during the year that had passed between the imputed
events and his arrest, although he had had an opportunity to do so.
- The
Court notes the Government's argument that the applicant had been
suspected of membership of an extremist organisation and had also
been likely to communicate the details of the investigation to his
accomplices. However, it is not the Court's task to assume the place
of the national authorities who ruled on the applicant's detention
and to supply its own analysis of facts arguing for or against
detention (see Nikolov v. Bulgaria, no. 38884/97,
§ 74, 30 January 2003, and Labita, cited above,
§ 152). Those circumstances were referred to for the first
time in the proceedings before the Court and the domestic courts
never mentioned it in their decisions.
- The
Court further observes that after the case had been submitted for
trial in July 2007 the trial court used the same summary formula to
refuse the requests for release and extend the pre-trial detention of
seven persons, without describing their personal situation in any
detail. The Court has already found that the practice of issuing
collective detention orders without a case-by-case assessment of the
grounds for detention in respect of each detainee was incompatible,
in itself, with Article 5 § 3 of the Convention (see
Shcheglyuk v. Russia, no. 7649/02, § 45,
14 December 2006; Korchuganova, cited above, §
76; and Dolgova v. Russia, no. 11886/05, § 49,
2 March 2006). By extending the applicant's detention by means of
collective detention orders the domestic authorities had no proper
regard to his individual circumstances.
- Finally,
the Court notes that when deciding whether a person should be
released or detained the authorities have an obligation under
Article 5 § 3 to consider alternative measures of
ensuring his or her appearance at trial. This Convention provision
proclaims not only the right to “trial within a reasonable time
or to release pending trial” but also lays down that “release
may be conditioned by guarantees to appear for trial” (see
Sulaoja v. Estonia, no. 55939/00, § 64 in fine,
15 February 2005, and Jabłoński, cited above, §
83). In the present case the authorities never considered the
possibility of ensuring the applicant's attendance by the use of a
more lenient preventive measure, although he asked many times to be
released on bail and provided the domestic courts with the personal
surety of a member of Parliament.
- 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, cited above, §§ 72
et seq.; Dolgova v. Russia, cited above, §§ 38
et seq.; Khudoyorov v. Russia, cited above, §§ 172
et seq.; Rokhlina v. Russia, cited above, §§ 63
et seq.; Panchenko v. Russia, cited above, §§ 91
et seq.; and Smirnova v. Russia, nos. 46133/99
and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).
- Having
regard to the above, the Court considers that by failing to address
specific facts or consider alternative “preventive measures”
and by relying essentially on the gravity of the charges, the
authorities extended the applicant's detention on grounds which,
although “relevant”, cannot be regarded as “sufficient”
for the entire period of detention. In these circumstances it would
not be necessary to examine whether the proceedings were conducted
with “special diligence”.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. 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 100,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the claim was excessive. In their opinion,
the finding of a violation would constitute sufficient just
satisfaction.
- The
Court observes that it has found a violation of Article 5 § 3 of
the Convention in that the length of the applicant's detention was
not sufficiently justified. It considers that the applicant must have
suffered frustration, helplessness and a feeling of injustice as a
consequence of the domestic authorities' decisions to keep him in
custody without sufficient reasons. It finds that the applicant
suffered non-pecuniary damage which would not be adequately
compensated by the finding of a violation. The particular amount
claimed is, however, excessive. Making its assessment on an equitable
basis, the Court awards the applicant EUR 3,000 under this head,
plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an 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 complaint concerning the excessive
length of the applicant's detention admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 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 3,000
(three 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 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 26 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
