SOLOVEY v. RUSSIA - 24157/11 (Judgment : Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)) [2017] ECHR 374 (25 April 2017)

In the case of Solovey v. Russia,

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

          Luis López Guerra, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 28 March 2017,

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

PROCEDURE

1. The case originated in an application (no. 24157/11) 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 Belarusian national, Mr Denis Aleksandrovich Solovey (“the applicant”), on 18 April 2011.

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

3. On 30 August 2016 the complaint concerning the belated examination of the applicant’s statements of appeal against two detention orders was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1982 and was detained in Moscow until his extradition to Belarus.

5. On 10 September 2010 the applicant was arrested in Moscow pursuant to an extradition request from the Belarus authorities. On the following day the Dorogomilovskiy District Court of Moscow ordered his detention.

6. The applicant’s detention was subsequently extended by judicial orders on several occasions, in particular, on 28 February and 2 June 2011. Both the applicant and his lawyer lodged their statements of appeal against these detention orders with the Moscow City Court, which upheld them on appeal on 11 April and 18 July 2011, respectively.

THE LAW

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

7. The applicant complained that the appeal review of the detention orders of 28 February and 2 June 2011 had been excessively long in breach of the “speediness” requirement of 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 request for the case to be struck out under Article 37 of the Convention

8. On 13 December 2016 the Government submitted a unilateral declaration inviting the Court to strike the case out of its list. They acknowledged that the appeal review of the detention orders of 28 February and 2 June 2011 had been excessively long and offered to pay the applicant a sum of money as just satisfaction.

9. By his letter of 30 January 2017 the applicant rejected the Government’s offer. He disagreed, in particular, with the amount of the proposed compensation.

10. Having studied the terms of the Government’s declaration, the Court is satisfied that the Government have acknowledged that the appeal proceedings against the detention orders in the applicant’s case fell short of the standard of “speediness” of judicial review under 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 belated judicial 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.

11. For the above reasons, the Court rejects the Government’s request to strike the case 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

12. The Court notes 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.

C. Merits

13. The Court recalls that it has already found a violation of Article 5 § 4 of the Convention in a number of cases against Russia, where, for instance, the proceedings by which the lawfulness of applicants’ detention was decided lasted thirty-four (see Manerov v. Russia, no. 49848/10, §§ 43-47, 5 January 2016), twenty-seven (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), twenty (see Butusov v. Russia, no. 7923/04, §§ 32-35, 22 December 2009) or twenty-six days (see Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006), stressing that their entire duration was attributable to the authorities.

14. In the present case it took the Russian courts forty-two and forty-six days to examine the applicant’s statements of appeal against detention orders of 28 February and 2 June 2011, respectively. The Government did not put forward any arguments explaining these delays. Moreover, the Court does not lose sight that they acknowledged that the delays in the examination of the applicant’s appeals ran counter to the requirements of Article 5 § 4 of the Convention.

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

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

16. 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.”

17. 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.

18. 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;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 5 § 4 of the Convention concerning the excessive length of the judicial review of the applicant’s detention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand 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 April 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 >> SOLOVEY v. RUSSIA - 24157/11 (Judgment : Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)) [2017] ECHR 374 (25 April 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/374.html Cite as: CE:ECHR:2017:0425JUD002415711, [2017] ECHR 374, ECLI:CE:ECHR:2017:0425JUD002415711