16120/07;24021/07

THIRD SECTION             CASE OF GORBATENKO AND SHEYDYAKOV v. RUSSIA   (Applications nos. 16120/07 and 24021/07)                             JUDGMENT         STRASBOURG   15 November 2016     This judgment is final but it may be subject to editorial revision. In the case of Gorbatenko and Sheydyakov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:  Branko Lubarda, President,  Pere Pastor Vilanova,  Georgios A. Serghides, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 18 October 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in two applications (nos. 16120/07 and 24021/07) 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 two Russian nationals, Mr Aleksandr Vladimirovich Gorbatenko and Mr Gennadiy Vladimirovich Sheydyakov (“the applicants”), on 16 February 2007 and 13 April 2007, respectively. 2.  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 14 December 2011 and 8 November 2013 the applications were communicated to the Government. THE FACTS THE CIRCUMSTANCES OF THE CASE 4.  The applicants were born in 1964 and 1975 respectively and lived in Moscow. 5.  On 5 April 2005 the Presnenskiy District Court in Moscow found the applicants and their co-defendants guilty of extortion and gave them a custodial sentence. On 31 October 2005 the Moscow City Court upheld the conviction on appeal. 6.  On 26 January 2006 the Presidium of the City Court quashed the appeal judgment of 31 October 2005 for formal defects and ordered a new appeal hearing. It did not mention the matter of the defendants’ detention. No ordinary appeal lay against that decision but the second applicant complained to the Supreme Court about the City Court’s failure to render a decision on his measure. On 13 December 2006 a judge of the Supreme Court rejected his complaint, finding as follows: “The fact that [the Presidium of the City Court] unjustifiably (необоснованно) omitted to rule on the preventive measure is not a ground for setting aside its decision because it appears from the ... City Court’s decision of 26 July 2006 and the ... District Court’s decision of 31 August 2006 that the matter of detention was addressed in subsequent judicial decision which maintained the custodial measure in respect of [the second applicant].” 7.  On 26 July 2006 the City Court held a new appeal hearing and quashed the initial conviction for formal defects, ordering a re-trial. It also held that there were no grounds for varying the preventive measure and maintained it without setting a time-limit or relying on any provisions of the domestic law. 8.  On 21 August 2006 the District Court held a preliminary hearing and fixed the trial date for 31 August. It maintained the custodial measure, without citing any reasons, references to the domestic law or time-limits. 9.  On 31 August 2006 the District Court returned the case file to prosecutor and extended the applicants’ detention, referring to the gravity of the charges but without setting a time-limit. On 30 October 2006 the City Court rejected the applicants’ appeals against the extension order. 10.  On 16 January 2007 the District Court extended the applicants’ detention until 28 February 2007, relying on the gravity of the charges and unspecified circumstances that indicated a risk of perverting the course of justice. On 21 February 2007 the City Court quashed the detention order of 16 January because of an incorrect date in its text. It maintained the custodial measure without giving reasons. On 27 February 2007 the District Court issued an identically worded detention order which was upheld on appeal on 16 April. 11.  On the same date the District Court granted a further extension of the applicants’ detention until 30 April 2007, relying on the gravity of the charges. The extension order was upheld on appeal on 25 June 2007. 12.  Further extensions were approved by the District Court on 27 and 28 April (upheld on appeal on 25 June), 8 and 16 May (upheld on appeal on 23 July), and 13 June 2007 (upheld on appeal on 1 August). 13.  On 11 October 2007 the District Court found the defendants guilty and gave them custodial sentences. THE LAW I.  JOINDER OF THE APPLICATIONS 14.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. II.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 15.  The applicants complained that their detention had been unlawful after the Presidium of the City Court had quashed the appeal judgment without deciding on the preventive measure. 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 16.  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 17.  The Government submitted that all detention orders had been issued in compliance with Russian law and that they had been sufficiently reasoned. The applicants pointed out that on 13 December 2006 the Supreme Court had acknowledged the Presidium’s failure to decide on the measure of restraint. 18.  The Court has already found violations of Article 5 § 1 of the Convention in many cases against Russia concerning a similar set of facts. It held that the absence of any grounds given by judicial authorities in their decisions authorising detention for a prolonged period of time is incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Khudoyorov v. Russia, no. 6847/02, § 142, ECHR 2005-X (extracts); Solovyev v. Russia, no. 2708/02, §§ 95-100, 24 May 2007; Shukhardin v. Russia, no. 65734/01, §§ 65-70, 28 June 2007; Belov v. Russia, no. 22053/02, §§ 79-82, 3 July 2008; Chumakov v. Russia, no. 41794/04, § 131, 24 April 2012) 19.  In the instant case none of the judicial decisions of 26 January, 26 July and 21 August 2006 gave any grounds for the continued application of the custodial measure or set a specific limit on the duration of the applicants’ detention. These decisions did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, and therefore that the applicants’ detention in that period was not “lawful” within the meaning of Article 5 § 1 of the Convention. 20.  There has accordingly been a violation of Article 5 § 1 of the Convention. III.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 21.  The applicants complained under Article 5 § 3 of the Convention that their pre-trial detention was not based on relevant and sufficient reasons. Article 5 § 3 provides 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.  Admissibility 22.  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 23.  The Government submitted that the applicants’ detention had not been excessively long. The applicants maintained their complaint. 24.  The Court notes that the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention lasted for one year two months and sixteen days, from 26 July 2006 when their first conviction was quashed until 11 October 2007 when a new conviction was pronounced. 25.  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 ground that the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin, cited above; Belov, cited above; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012). 26.  The Court notes that the domestic courts relied essentially on the gravity of the charges to keep the applicants in custody. It finds that the reasons for extending the custodial measure cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”. 27.  There has accordingly been a violation of Article 5 § 3 of the Convention. IV.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 28.  Invoking Article 5 § 4 of the Convention, the first applicant complained that the appeals against the orders of 31 August 2006 and 16 January 2007 had not been considered “speedily” and the second applicant complained that the detention orders of 21 August 2006 and 8 May 2007 had been issued without him or his lawyer being present. Article 5 § 4 provides as follows: “4.  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.  Admissibility 29.  The Court observes that the second applicant’s complaint concerning his absence from the hearing on 21 August 2006 was first raised more than six months later, on 13 April 2007. In contrast to an objection as to the non‑exhaustion of domestic remedies which must be raised by the respondent Government, the Court cannot set aside the application of the six-month rule solely because a government have not made a preliminary objection to that effect. It follows that this complaint is belated and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 30.  As to the remainder of the complaints under Article 5 § 4, the Court considers that it is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. B.  Merits 31.  The Government submitted that the first applicant and his co‑defendants had contributed to the belated examination of the appeal against the detention order 31 August 2006 by submitting multiple grounds of appeal. They acknowledged that the hearing of 8 May 2007 had been held in the absence of the second applicant and his lawyer. 32.  The Court reiterates that Article 5 § 4 of the Convention, in guaranteeing to detained persons a right to institute proceedings to challenge the lawfulness of their deprivation of liberty, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention. The procedure under Article 5 § 4 must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question, including the possibility for a detainee to be heard either in person or through some form of representation (see Mamedova, cited above, § 89, with further references). 33.  In the instant case it took the Regional Court each time approximately three months to reach a final decision on the appeals against the detention orders of 31 August 2006 and 16 January 2007, which period cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention (see Mamedova, cited above, § 96). Furthermore, the second applicant was neither present nor represented at the hearing of 8 May 2007 concerning the matter of his detention and thus denied the possibility to be heard. 34.  In view of the above considerations, there has been a violation of Article 5 § 4 of the Convention. V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION 35.  Lastly, the applicants complained of other violations of the Convention. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that the above complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 36.  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.” 37.  The first applicant claimed 30,000 euros (EUR) in respect of non‑pecuniary damage and EUR 11,832 for the loss of earnings. The second applicant claimed EUR 50,000 in respect of non-pecuniary damage and EUR 15,000 for the loss of earnings. 38.  The Government considered that the claims were excessive. 39.  The Court awards each applicant EUR 7,500 in respect of non‑pecuniary damage, plus any tax that may be chargeable, and rejects the remainder of their claims (see, as regards the alleged loss of earnings, Nakhmanovich v. Russia, no. 55669/00, § 102, 2 March 2006). 40.  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.  Decides to join the applications;   2.  Declares the complaints concerning the lawfulness and duration of the applicants’ detention, delays in the examination of appeals against the detention orders of 31 August 2006 and 16 January 2007, and the second applicant’s absence from the hearing on 8 May 2007 admissible and the remainder of the applications inadmissible;   3.  Holds that there has been a violation of Article 5 § 1 of the Convention;   4.  Holds that there has been a violation of Article 5 § 3 of the Convention;   5.  Holds that there has been a violation of Article 5 § 4 of the Convention;   6.  Holds (a)  that the respondent State is to pay each applicant, within three months, EUR 7,500 (seven thousand five 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;   7.  Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 15 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Fatoş Aracı Branko Lubarda Deputy Registrar President