11010/10

THIRD SECTION               CASE OF KISELEV v. RUSSIA   (Application no. 11010/10)                 JUDGMENT     STRASBOURG   22 November 2016           This judgment is final but it may be subject to editorial revision.   In the case of Kiselev 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 3 November 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in an application (no. 11010/10) 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 Oleg Aleksandrovich Kiselev (“the applicant”), on 13 January 2010. 2.  The applicant was represented by Ms O. Tseytlina, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights. 3.  On 10 July 2013 the application was communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.  The applicant was born in 1965 and lives in the Leningrad Region. 5.  On 25 February 2009 an investigator charged the applicant with kidnapping in absentia and put his name of the international list of fugitives from justice. On the same day the investigator asked the Vasileostrovskiy District Court in St Petersburg to detain the applicant on remand. 6.  On 2 March 2009 the District Court granted the investigator’s application for a detention order, referring to the gravity of the charges against the applicant. 7.  On 22 July 2009 the applicant was apprehended in the Vologda Region and transferred to a remand prison in St Petersburg. 8.  On 30 July 2009 the applicant was interviewed and received a copy of the charge sheet. He also submitted an appeal against the detention order of 2 March. 9.  On 1 September 2009 the St Petersburg City Court heard the appeal and set aside the detention order, finding that the failure to follow the legal procedure for putting the applicant’s name on the list of fugitives from justice amounted to a “fundamental breach” of the rules of criminal procedure. It ordered a new examination of the detention matter but did not specify whether or not the applicant should remain in custody. As it happened, the applicant was not released. 10.  On 18 September 2009 the District Court refused the investigator’s request for a detention order. It held, firstly, that the gravity of the charges was not a sufficient reason for detaining the applicant and, secondly, that the procedure for putting his name on the list of fugitives from justice had not been followed. The applicant was released in the courtroom. 11.  On 21 October 2009 the District Court found the applicant guilty and gave him a custodial sentence conditional on four years’ probation. THE LAW I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 12.  The applicant complained that his detention in the period from 1 to 18 September 2009 had been unlawful. The Court will examine this complaint under Article 5 § 1 of the Convention which reads as follows: “1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save ... in accordance with a procedure prescribed by law ...” A.  Admissibility 13.  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. B.  Merits 14.  Referring to the City Court’s decision of 1 September 2009, the Government acknowledged that the detention order of 2 March 2009 had been issued in breach of the applicable rules of procedure without sufficient grounds. After the order had been set aside, the applicant should have been released but he was not. The Government acknowledged that there was a violation of Article 5 § 1 of the Convention in the period from 22 July to 18 September 2009. 15.  The applicant maintained his complaint. 16.  The Court notes that the applicant’s complaint related to a period of his detention after 1 September 2009 when the appeal court set aside the initial detention order. In doing so, it did not say whether or not the applicant should continue to be detained. Since he was not released and since there was no judicial decision or any other legal basis for his continued detention, the Court finds that it was arbitrary and unlawful. 17.  There has accordingly been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 1 to 18 September 2009. II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 18.  The applicant also complained that he had not been promptly informed of the charges against him, that he had not received a copy of the initial detention order and that he had not been given any compensation for his unlawful detention. 19.  The Government pointed out that the applicant had raised these complaints for a first time in his supplementary application form of 2 October 2010, more than a year after his detention had ended. 20.  The Court accepts the Government’s objection and holds that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.  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.” 22.  The applicant asked the Court to determine the amount of compensation in respect of non-pecuniary damage. He claimed 225 euros (EUR) for his representation before the Court. 23.  The Government submitted that the claim for costs was excessive. 24.  The Court awards the applicant EUR 7,500 in respect of non‑pecuniary damage and EUR 225 in respect of legal costs, plus any tax that may be chargeable. 25.  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 complaints concerning the applicant’s detention in the period from 1 to 18 September 2009 admissible and the remainder of the application inadmissible;   2.  Holds that there has been a violation of Article 5 § 1 of the Convention;   3.  Holds (a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)  EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)  EUR 225 (two hundred twenty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Fatoş Aracı Helena Jäderblom Deputy Registrar President