KALININ v. RUSSIA - 54749/12 - Committee Judgment [2015] ECHR 201 (19 February 2015)

In the case of Kalinin v. Russia,

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

          Khanlar Hajiyev, President,
          Julia Laffranque,
          Erik Møse, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 27 January 2015,

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

PROCEDURE

1. The case originated in an application (no. 54749/12) 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 Sergey Borisovich Kalinin (“the applicant”), on 8 August 2012.

2. The applicant was represented by Mr I. Nikolayev, a lawyer practising in Valday. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3. On 30 August 2013 the complaint about an allegedly excessive duration of the 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 1967 and lived in Velikiy Novgorod.

5. On 13 April 2011 the applicant was arrested for theft and remanded in custody. On 31 May 2011 he was additionally charged with more counts of theft and illegal possession of firearms. On 24 August 2011 a further 27 counts of theft were added to the charges against him. On 29 September 2011 the Valdayskiy District Court of the Novgorod Region found the applicant guilty as charged but the conviction was quashed by the Regional Court on 6 December 2011.

6. The facts concerning the initial period of the applicant’s pre-trial detention are summarised in the table below.

Decisions	1^st instance court	2^nd instance court
1^st detention order	16.04.2011 Valdayskiy District Court (Novgorod Region)	No information
Reasons	Risks: · absconding; · re-offending. Specific factual circumstances: · gravity and nature of the crime; · no permanent residence (the applicant lived for a long time in a makeshift bunker in the forest and had a residence registration in another region of Russia); · no job; · no family, no relatives, no social ties; · a sawn-off shotgun and ammunition were seized by the applicant’s arrest. Conduct of the proceedings: no information. Alternative preventive measures: not analysed. Other aspects: The court noted that there was sufficient evidence for opening a criminal case against the applicant.
2^nddetention order	14.06.2011 Valdayskiy District Court (Novgorod Region)		No information
Reasons	Risks: · absconding; · re-offending. Specific factual circumstances: · gravity and number of the crimes concerned; · no residence registration and no place of residence in the Novgorod Region (the applicant lived for a long time in a self-made bunker in the forest); · no social ties; · no job, absence of any means of subsistence; · criminal record. Conduct of the proceedings: no information. Alternative preventive measures: not analysed. Other aspects: The court noted that there was sufficient evidence for opening the criminal case against the applicant.
3^rd detention order (trial stage)	06.12.2011 Novgorod Regional Court		n/a
Reasons	Risks: not specified. Specific factual circumstances: · gravity and number of the crimes imputed. Conduct of the proceedings: The detention order was a part of the appeal judgment which quashed the first instance conviction judgment. Alternative preventive measures: not mentioned. Other aspects: The court noted that the applicant’s detention was necessary for the protection of the rights and legal interests of the participants of the criminal proceedings as well as for the proper conduct of the trial within a reasonable time.
4^th detention order	10.02.2012 Valdayskiy District Court (Novgorod Region)	06.03.2012 Novgorod Regional Court
Reasons	Risks: · absconding; · re-offending. Specific factual circumstances: · gravity, number and nature of the charges; · previous convictions; · several crimes concerned have been allegedly committed by the applicant while being on probation; · the applicant did not live at his officially registered address for a long time; · no job, abuse of alcohol, social instability, no social ties, predisposition to commit offenses. Alternative preventive measures: not mentioned. Conduct of the proceedings: no information. Other aspects: The court noted that the applicant’s detention was necessary for the protection of the rights and legal interests of the participants of the criminal proceedings as well as for the proper conduct of the trial within a reasonable time.
5^th detention order	05.06.2012 Valdayskiy District Court (Novgorod Region)	17.07.2012 Novgorod Regional Court
Reasons	Risks: · absconding; · re-offending. Specific factual circumstances: · gravity, number and nature of the charges; · previous convictions; · several crimes concerned have been allegedly committed by the applicant while being on probation; · the applicant did not live at his officially registered address for a long time; · no job, abuse of alcohol, social instability, no social ties, predisposition to commit offenses. Alternative preventive measures: not mentioned. Conduct of the proceedings: no information. Other aspects: The court noted that the applicant’s detention was necessary for the protection of rights and legal interests of the participants of the criminal proceedings as well as for the proper conduct of the trial within a reasonable time.
6^th detention order	06.09.2012 Valdayskiy District Court (Novgorod Region)		No information
Reasons	Risks: · absconding; · re-offending. Specific factual circumstances: · gravity, number and nature of the charges; · previous convictions; · several crimes concerned have been allegedly committed by the applicant while being on probation; · the applicant did not live at his officially registered address for a long time; · no job, abuse of alcohol, social instability, no social ties, predisposition to commit offenses. Alternative preventive measures: not mentioned. Conduct of the proceedings: no information. Other aspects: The court noted that the applicant’s detention was necessary for the protection of the rights and legal interests of the participants of the criminal proceedings as well as for the proper conduct of the trial within a reasonable time.
7^th detention order	28.11.2012 Valdayskiy District Court (Novgorod Region)		25.12.2012 Novgorod Regional Court
Reasons	Risks: · absconding; · re-offending. Specific factual circumstances: · gravity and number of the charges; · previous convictions; · several crimes concerned have been allegedly committed by the applicant while being on probation; · the applicant did not live at his officially registered address for a long time; · no job, abuse of alcohol, social instability, no social ties, predisposition to commit offenses. Alternative preventive measures: not mentioned. Conduct of the proceedings: The court noted that a number of hearings had been postponed following the applicant’s requests for examination of additional witnesses, for conducting an expert examination and for referral of the case to the prosecution for additional investigation. Other aspects: not specified.

II. PROCEEDINGS BEFORE THE COURT

7. On 30 August 2013, when giving notice of the application to the Government, the Court invited the parties to check the statement of facts prepared by the Registry and to produce, if necessary, any missing detention orders. It also directed the parties as follows: “Where the applicant’s detention was extended after the date of the applicant’s last letter to the Court, the parties are invited to indicate the overall length of the detention on remand and reasons for extension.”

8. On 11 September 2013 the Court forwarded to the Government a copy of the applicant’s letter by which he informed the Court of two further three-month extensions of the authorised detention period that had been granted by the Valdayskiy District Court on 6 March and 5 June 2013. The latter extension was upheld on appeal by the Novgorod Regional Court on 26 June 2013.

9. On 1 November 2013 the Government submitted a unilateral declaration. They acknowledged that the applicant had been detained “during 1 year 5 months and 17 days ... without relevant and sufficient grounds” and in breach of the requirements of Article 5 § 3 of the Convention. They offered to pay him a sum of 2,960 euros (EUR) as just satisfaction and invited the Court to strike the case out of its list of cases.

10. On 30 November 2013 the applicant replied that he had taken note of the Government’s acknowledgement of the violation and that the amount of compensation was acceptable to him. He pointed out however that further extensions of his detention had taken place after the communication of his application and that the global duration of his detention amounted to two years seven months and seventeen days. He enclosed a copy of the judgment by the Valdayskiy District Court of 7 August 2013, by which he was convicted and sentenced to five and a half years’ imprisonment.

11. By letter of 25 March 2014, the Court invited the Government to amend the terms of their unilateral declaration to reflect the entire duration of the applicant’s pre-trial detention.

12. On 15 April 2014 the Government refused to amend the declaration. They submitted that the scope of the case should be determined by reference to the information that was available to the Court at the moment of communication and that any extension of the scope would only be possible upon a “formal indication” from the Court to that effect. The applicant had waited for four months before informing the Court about his conviction, even though he was aware that the case had been communicated to the parties. The Government asserted that the applicant had failed to show due diligence which could be reasonably expected from him.

THE LAW

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

13. The applicant complained that the duration of his pre-trial detention had been excessive in breach of Article 5 § 3 of the Convention, which reads as follows:

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

A. Scope of the complaint

14. Having regard to the Government’s objection regarding the allegedly indeterminate scope of the complaint (see paragraph 12 above), the Court considers it appropriate to address this issue at the outset.

15. The Court reiterates that in cases concerning continuous situations, such as the length of proceedings complaints under Article 6 § 1 or the length of detention complaints under Article 5 § 3, the duration of the impugned period lasts until such time as this situation is over or as the Court decides on the admissibility and merits of the complaint. In accordance with national and international practice, the Court is competent to examine facts which occurred during the proceedings before it and constitute a mere extension or the facts complained of at the outset, in particular in matters of detention while on remand (see, as a classic authority, Stögmüller v. Austria, 10 November 1969, § 7, Series A no. 9; and the case-law cited in Novokreshchin v. Russia, no. 40573/08, § 16, 27 November 2014). The moment of lodging the application or communication of the complaint to the respondent Government is therefore immaterial and the statement of facts, prepared by the Court’s Registry, does not bind the Court or delimit the scope of the complaint. It is a working document containing a summary of the applicant’s submissions which, upon the preliminary examination of the application and documents submitted, give the Court reason to believe that the case reveals prima facie evidence of a violation of the Convention (see, mutatis mutandis, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 122, 10 January 2012). It is incumbent on the parties to verify the accuracy of the statement of facts and to submit such documents, which are in their possession or which are readily available to the State authorities concerned, as are necessary to complement the description of the circumstances of the case (see paragraph 7 above and Rule 44A of the Rules of Court).

16. For the purposes of Article 5 § 3, the period to be taken into consideration ends with the applicant’s release or his or her conviction by the first-instance court (see, most recently, Idalov v. Russia [GC], no. 5826/03, § 112, 22 May 2012; Labita v. Italy [GC], no. 26772/95, §§ 145-147, ECHR 2000-IV). If the applicant is still in pre-trial detention on the date of examination of his complaint by the Court, the Court is competent to examine the State’s compliance with the requirements of Article 5 § 3 in respect of the detention period up until the judgment date (see Mkhitaryan v. Russia, no. 46108/11, § 89, 5 February 2013; Şahap Doğan v. Turkey, no. 29361/07, § 26, 27 May 2010; Polonskiy v. Russia, no. 30033/05, § 144, 19 March 2009; Aleksandr Makarov v. Russia, no. 15217/07, § 121, 12 March 2009).

17. The applicant was taken into custody on 13 April 2011. His first conviction was pronounced on 29 September 2011 but later quashed 6 December 2011. On 7 August 2013 he was convicted again and given a custodial sentence. It follows that the period to be taken into consideration that falls within the scope of the applicant’s complaint under Article 5 § 3, lasted from 13 April 2011 to 29 September 2011 and from 6 December 2011 to 7 August 2013, that is for a total of two years one month and nineteen days.

B. The applicant’s alleged failure to inform the Court in good time about the progress in the criminal proceedings

18. The Government pointed out that, upon communication of the case, the applicant had waited too long before informing the Court about his conviction (see paragraph 12 above). The Court must therefore decide what legal consequences can be drawn from such conduct on the part of the applicant.

19. The Court reiterates that under Article 35 § 3 (a) of the Convention an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. The same applies if new, important developments have occurred during the proceedings before the Court and where, despite being expressly required to do so by Rule 47 § 7 (former Rule 47 § 6) of the Rules of Court, the applicant has failed to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, and the case-law cited therein).

20. The present case concerns an allegedly excessive nature of the applicant’s detention pending trial. By lodging his application with the Court, the applicant complained of a situation in which he had already been for some time and which was to last until it ended. In these circumstances, any subsequent developments in the criminal proceedings against him would not have affected the core of the matter underlying his complaint under the Convention because a significant period of his detention had already taken place. Even if he had been acquitted, a claim for compensation for wrongful prosecution - which he would have been entitled to bring in the framework of the “rehabilitation proceedings” - would not have affected his standing as a “victim” of the alleged violation of Article 5 § 3 of the Convention (see Shalya v. Russia, no. 27335/13, §§ 13-23, 13 November 2014). Accordingly, the Court is unable to find that a lack of information about further extensions of the applicant’s detention could have had a decisive influence on the Court’s judgment or could have prevented it from ruling on the case (see, by contrast, Gross, cited above, § 35).

21. As it happened in the instant case, the applicant has remained in contact with the Court throughout the proceedings. He informed the Court of two further extensions of his detention (see paragraph 8 above) and of his conviction at first instance (see paragraph 10 above). The Court cannot therefore discern any indication whatsoever that the applicant intended to mislead it as to his situation. The Government’s submission is without merit and is of no legal consequence for the proceedings.

C. The Government’s request for the case to be struck out under Article 37 of the Convention

22. Having studied the terms of the Government’s declaration of 1 November 2013 (see paragraph 9 above), the Court is satisfied that the Government acknowledged a violation of the applicant’s right to release pending trial under Article 5 § 3 and also offered to pay compensation.

23. The Court observes, however, that the declaration only covered a part of the period of the applicant’s detention. Without prejudging its decision on the admissibility and merits of the case, the Court considers, in such circumstances, that the Government’s 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 (see Sorokin v. Russia, no. 67482/10, § 21, 10 October 2013).

24. This being so, the Court rejects the Government’s request to strike the application out of its list of cases under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

D. Admissibility

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

E. Merits

26. 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, Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012; Romanova v. Russia, no. 23215/02, 11 October 2011; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Makarenko v. Russia, no. 5962/03, 22 December 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Belov v. Russia, no. 22053/02, 3 July 2008, and Shukhardin v. Russia, no. 65734/01, 28 June 2007). Similar considerations apply in the circumstances of the present case in which the domestic courts failed to consider any alternative to the custodial preventive measure and in which the Government acknowledged the absence of relevant and sufficient reasons for keeping the applicant in custody during the initial one and a half years of his detention.

27. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. 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

29. The applicant claimed EUR 26,667 in respect of non-pecuniary damage.

30. The Government refused to comment on his claims, stating that their unilateral declaration provided an adequate basis for the settlement of the case.

31. The Court awards the applicant EUR 3,300 in respect of
non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

32. The applicant did not make any claim under this head.

C. Default interest

33. 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 the application out of its list of cases under Article 37 of the Convention;

2. Declares the application admissible;

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

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date of the judgment, EUR 3,300 (three thousand three 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;

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

Done in English, and notified in writing on 19 February 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Khanlar Hajiyev
Deputy Registrar President

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