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FIRST
SECTION
CASE OF SERGEY MEDVEDEV v. RUSSIA
(Application
no. 3194/08)
JUDGMENT
STRASBOURG
30
July 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 Sergey Medvedev 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 Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3194/08) 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 Sergeyevich
Medvedev (“the applicant”), on 21 November 2007.
- The
applicant was represented by Mr M. Stepanov, a lawyer practising in
Moscow. 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 on remand had been unlawful and
excessively long.
- On
30 April 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 1983 and lives in the Moscow region.
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 under the same
name. Party members challenged the refusal before the Taganskiy
District Court of Moscow.
- On
13 April 2006 fifteen party members, including the applicant,
attended the 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
15 May 2006 the applicant attended an assembly of members of the
National Bolshevik Party. The police broke down the door and arrested
him.
- On
16 May 2006 the applicant was charged with participation in mass
disorder, involving the use of gas guns and assault and battery, an
offence under Article 213 § 2 of the Criminal Code.
- The
investigator applied to the Tverskoy District Court of Moscow for a
custody order. He submitted that the applicant had been charged with
a serious criminal offence, had no permanent place of residence in
Moscow and had been previously fined in administrative proceedings
for commission of disorderly acts. Therefore, there were reasons to
believe that he might abscond or reoffend.
- On
17 May 2006 the Tverskoy District Court ordered the applicant's
placement in custody, referring to the gravity of the charge and the
risk of his absconding or reoffending.
- The
applicant appealed. He complained that the District Court had
disregarded pertinent facts such as his lack of a criminal record,
his permanent residence and positive references and his frail health.
The conclusion that he might flee or reoffend was hypothetical and
was not supported by relevant facts.
- On
7 June 2006 the Moscow City Court upheld the decision on appeal,
finding that it had been lawful, well-reasoned and justified. Before
ordering the applicant's placement in custody the District Court had
reviewed the materials submitted by the prosecution and had taken
into account the applicant's character and personal situation.
- On
30 October 2006 a member of Parliament offered his personal guarantee
that the applicant would not abscond.
- On
14 September 2006 the Tverskoy District Court extended the
applicant's detention until 15 November 2006, finding that there was
no reason to vary the preventive measure. On 18 December 2006 the
Moscow City Court upheld the extension order on appeal, finding that
it had been lawful and justified.
- On
13 November 2006 the Tverskoy District Court extended the applicant's
detention until 16 January 2007 for the same reasons as before. On 10
January 2007 the Moscow City Court upheld the extension order on
appeal.
- On
an unspecified date in December 2006 an additional charge of
infliction of injuries, an offence under Article 112 § 2 of the
Criminal Code, was brought against the applicant.
- On
16 January 2007 the Tverskoy District Court extended the applicant's
detention until 16 March 2007, referring to the gravity of the
charges, the risk that he might abscond, reoffend or interfere with
the proceedings and the need for further investigation.
- In
his appeal submissions the applicant asked to be released on bail. On
14 February 2007 the Moscow City Court upheld the extension order on
appeal, finding that it had been lawful, well-reasoned and justified.
- On
an unspecified date the investigation was completed and six
defendants including the applicant were committed for trial.
- On
12 March 2007 the Taganskiy District Court of Moscow scheduled a
preliminary hearing for 20 March 2007 and held that all the
defendants should remain in custody. It 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, referred to the
defendants' characters and concluded that they might abscond or
intimidate the victims and witnesses.
- On
27 March 2007 the Taganskiy District Court held a preliminary
hearing. It refused the defendants' requests for release, citing the
gravity of the charges against them and the risk of their absconding,
reoffending or obstructing justice. In respect of the applicant's
“character” the court noted that he had a record of
administrative offences.
- On
24 May 2007 the Taganskiy District Court remitted the case for
further investigation and ordered that all the defendants should
remain in custody. It found that the defendants' characters and the
gravity of the charges against them gave reasons to believe that they
might abscond, reoffend or interfere with the proceedings. In respect
of the applicant's “character” the court noted that he
had a record of administrative offences.
- On
29 June 2007 the Tverskoy District Court extended the applicant's
detention until 6 August 2007. The court found that the case involved
several defendants and was complex. Some of the defendants had been
at large for a long time and some accomplices had not yet been
identified. The complexity of the case justified the length of the
applicant's detention. Given the gravity of the charges against the
applicant, his record of administrative offences and his
unemployment, he might abscond or interfere with the establishment of
the truth in some other way if released.
- In
his appeal submissions the applicant repeated his arguments that the
District Court's conclusions had not been supported by relevant
facts, while he had produced a personal guarantee from a member of
Parliament and had demonstrated that he had positive references. He
also argued that the case was not complex and claimed that his
detention had exceeded “a reasonable time”. On 1 August
2007 the Moscow City Court upheld the extension order on appeal,
finding that it had been lawful and justified.
- On
an unspecified date the defendants were again committed for trial.
- On
26 July 2007 the Taganskiy District Court scheduled a preliminary
hearing for 8 August 2007 and ordered that the defendants should
remain in custody in the meantime. 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 the Taganskiy District Court held a preliminary hearing
and ordered that all the defendants should remain in custody for the
same reasons as before.
- On 12 September 2007 the applicant and his
co-defendants lodged applications for release with the Taganskiy
District Court. On the same day the Taganskiy District Court rejected
the applications. It noted that the defendants' arguments had already
been examined and rejected many times when the extension orders had
been issued. It found that the grounds for the defendants' detention
mentioned in the extension orders were still pertinent and that 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 26 December 2007 the 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 that a risk remained of their
absconding, reoffending or obstructing 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 offence in question were without substance
because, in extending the defendants' detention, the court could not
make any findings as to their guilt or innocence.
- On
24 March 2008 the Taganskiy District Court convicted the defendants
as charged and sentenced the applicant to two years 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” (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 judicial proceedings”). The period of detention “during
the judicial proceedings” 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
the 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 had been
unlawful, the Court notes that on 17 May 2006 the Tverskoy District
Court of 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 the fact that the applicant had been charged with a
serious criminal offence, had not lived at his registered place of
residence in the Moscow 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
his 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. The applicant had been previously
fined in administrative proceedings for commission of disorderly
acts, which also proved that he was likely to reoffend. The domestic
courts had also taken into account the fact that the imputed offence
had been committed by an organised group. It had therefore been
necessary to hold the applicant in custody to prevent his obstructing
the establishment of the truth by communicating details of the
investigation to his accomplices. In the Government's view, the
applicant's 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
for more than a year. The criminal proceedings against him had been
politically motivated and he had been persecuted for his political
views and membership of an opposition organisation, the National
Bolshevik Party. He had a permanent place of residence, had offered
to post bail and had provided the courts with the personal surety of
a member of Parliament. 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 15 May 2006. On 24 March 2008 the trial
court convicted him as charged. Thus, the period to be taken into
consideration lasted slightly more than one year and ten months.
- The
Court accepts that the applicant's detention was initially 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 his 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 applicant's lack of a permanent place
of residence or 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, 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).
- 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 his 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, 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 applicant's previous criminal record did not justify
his detention because the offences which had given rise to his
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 offence in
question had been committed by a group of people acting in criminal
conspiracy. The Court observes that the 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 finding that he had no permanent place of residence
or employment in Moscow. The applicant maintained that he had a
permanent place of residence in the Moscow region. 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 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 such risks. Nor did they address the fact that the
applicant had not fled, reoffended or interfered with the
investigation during the month that had passed between the events in
question 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 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 them in their decisions.
- The
Court further observes that while the case was pending before the
trial court – from March to May and from July 2007 onwards –
the trial court used the same summary formula to refuse the requests
for release and extend the 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 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 his or her
specific situation 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
his specific situation 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 is not 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. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION
- The applicant alleged that the criminal proceedings
against him had been politically motivated and that he had been
persecuted for his membership of the opposition organisation the
National Bolshevik Party. He invoked Article 18 of the Convention,
which reads as follows:
“The restrictions permitted under [the] Convention
to the said rights and freedoms shall not be applied for any purpose
other than those for which they have been prescribed.”
- The
Court has examined this complaint in the light of the evidence
submitted to it, and finds that it is unsubstantiated. The applicant
was prosecuted for his participation in mass disorder rather than for
his membership of an opposition organisation. Accordingly, this
complaint must be rejected as manifestly ill-founded pursuant to
Article 35 §§ 3 and 4 of the Convention.
III. 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 50,000 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 5,000 under this head,
plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant claimed 25,000 Russian roubles (RUB) for his
representation. He submitted that his representative had spent 25
days on the preparation of the application form and the observations.
It had been agreed between the applicant and his representatives that
his work would be remunerated at the rate of RUB 1,000 per day. He
produced receipts showing that he had already paid the legal fee.
Relying on postal invoices, he also claimed RUB 188.50 for postal
expenses.
- The
Government did not comment.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, regard being had to the documents in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 580, plus any tax that may be
chargeable to the applicant on that amount.
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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
5,000 (five thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
580 (five hundred and eighty 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
