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FIRST
SECTION
CASE OF ABIDOV v. RUSSIA
(Application
no. 52805/10)
JUDGMENT
STRASBOURG
12 June
2012
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 Abidov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52805/10) 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 national of Kyrgyzstan, Mr Zhakhongir
Minkhatovich Abidov (“the applicant”), on 27 August 2010.
- The applicant was represented by Ms E. Davidyan and
Mrs Ye. Ryabinina, lawyers of the NGO EHRAC/Memorial Human
Rights Centre, Moscow. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged that his extradition on criminal charges to
Uzbekistan would be in breach of Articles 3 and 13 of the Convention
and that his detention pending extradition had raised issues under
Article 5.
- On
24 December 2010 the President of the Section, acting under Rules 39
and 41 of the Rues of Court, decided to indicate to the Russian
Government that the applicant should not be extradited to Uzbekistan
until further notice and to grant priority treatment to the
application.
- On
24 June 2011 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Novosibirsk.
A. The background to the case and the applicant’s
arrival in Russia
- The
applicant is an ethnic Uzbek, who lived in Osh, Kyrgyzstan, prior to
his arrival in Russia.
- Since
2001 the applicant has regularly travelled to Russia and South Korea
for work-related purposes. In 2003 the applicant’s
brother in law and his Uzbek friends began living in the
applicant’s flat. It appears that criminal proceedings were
initiated in Kyrgyzstan against the applicant’s brother-in-law,
who was suspected of being a member of an armed gang. In the
meanwhile, the applicant left Kyrgyzstan for South Korea, passing
through Uzbekistan. He returned to Kyrgyzstan in 2005 and was
questioned as a witness in the criminal proceedings brought against
his brother-in-law. In 2006 the latter was killed and the armed gang
dismantled.
- In
November 2009 the applicant arrived in Novosibirsk, Russia, and
applied to the department of the Federal Migration Service (“FMS”)
in the Novosibirsk Region (“the regional FMS”) for
Russian citizenship. Shortly thereafter he returned to Kyrgyzstan for
family matters. In March 2010 the applicant was allegedly informed by
the FMS that he had received Russian citizenship; however later this
information had not been confirmed (see below). On 27 June 2010
the applicant returned to Novosibirsk.
B. Criminal proceedings against the applicant in
Uzbekistan
- On
8 December 2006 the investigation department of the
National Security Service of Uzbekistan (“the investigation
department”) brought criminal proceedings against the applicant
under Articles 159-1 (attempting to overthrow the constitutional
order), 242-1 (setting up a criminal gang) and 244-2(1) (being a
member of a religious extremist, separatist or other banned
organisation) of the Uzbek Criminal Code (“the UCC”). The
applicant was, in particular, suspected of setting up an extremist
organisation, Kyrgyz Community (kirgiz zhamoati), in
Novosibirsk, providing its members with accommodation and money,
catering for them and facilitating their encounters with members of
the Islamic Movement of Uzbekistan with a view to overthrowing the
constitutional order in Uzbekistan.
- On
19 January 2007 the investigation department issued two
indictments in respect of the applicant. The documents differed in
several aspects, such as accomplices’ names, the name of the
criminal gang in which the applicant had been involved and the degree
of his personal involvement. One of the documents indicted the
applicant under Article 159-3 of the UCC while the other one indicted
him under Article 159-3 (a) and (b) of the UCC. Furthermore, one of
the documents was neither signed by the head of the investigation
department nor sealed by the Prosecutor’s Office for the
Novosibirsk Region.
- On
19 January 2007 the investigation department indicted the
applicant on the above-mentioned charges in absentia,
ordered his detention and put his name on a wanted list.
C. Extradition proceedings
- On
28 June 2010 the applicant was arrested by the police in
Novosibirsk as a person wanted by the Uzbek authorities (see below).
- On
23 July 2010 the Uzbekistan Prosecutor General’s Office
requested that its Russian counterpart extradite the applicant on
criminal charges under Articles 159-3 (a) and (b), 242-1 and 244-2
(1) of the UCC. Relying on Article 66 of the Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
(“the Minsk Convention”), the Uzbek authorities assured
their Russian counterparts that: the applicant would not be
extradited to a third country without the consent of the Russian
Federation; no further criminal proceedings would be initiated
against him; he would not be tried or punished for an offence which
had not been the subject of the extradition request; and he would be
able to leave Uzbekistan once the court proceedings had concluded and
the punishment had been served.
- It
appears that, prior to that date, the Kyrgyz authorities had rejected
a similar extradition request by the Uzbekistan Prosecutor General’s
Office.
- On
30 September 2010 a Deputy Prosecutor General granted the
extradition request. He referred to the charges brought against the
applicant, according to which in 2003 he had set up Kyrgyz Community,
a criminal gang, in Novosibirsk with the aim of overthrowing the
existing Uzbek regime by creating an alternative Islamic State,
disseminated radical Islamic ideology and subversive materials, and
provided accommodation and financial assistance to gang members. The
prosecutor decided to extradite the applicant on the basis of the
charges of setting up a criminal group and being involved in it
(Article 210-1 of the Russian Criminal Code (“the RCC”))
and attempting to overthrow the existing regime and constitutional
order (Article 278 of the RCC). He refused his extradition under
Article 244 2 (1) because Kyrgyz Community was not
banned in Russia. The prosecutor further noted that the statute of
limitations for those offences had not expired, either in Russia or
in Uzbekistan. The prosecutor pointed out that, in line with the
Minsk Convention and the Russian Code of Criminal Procedure,
differences in the classification of the offences and their elements
under Russian and Uzbek criminal law were not a sufficient basis to
refuse extradition. Lastly, the prosecutor referred to information
provided by the FMS to the effect that the applicant was a Kyrgyz
national who had not applied for Russian citizenship. The prosecutor
concluded that there were no obstacles to his extradition to
Uzbekistan.
- On
8 October 2010 the applicant was apprised of the above decision
and appealed against it, citing fear of torture and inhuman and
degrading treatment in the event of his extradition to Uzbekistan on
political charges. The applicant and his lawyer underlined the poor
human rights situation in Uzbekistan, referring to a number of
international reports, media publications and case-law of the
European Court of Human Rights. They also alleged that the charges
against the applicant were made-up, pointing out the inconsistencies
in the indictments (see above).
- On
29 November 2010 the Novosibirsk Regional Court (“the
regional court”) heard the applicant’s case. The
applicant’s lawyer underlined that the applicant had never been
prosecuted in Russia for the crimes allegedly committed on its
territory.
- On
8 December 2010 the regional court found the extradition
decision lawful and rejected the applicant’s appeal. The court
established that the applicant had been aware of the charges brought
against him and had therefore gone into hiding in Kyrgyzstan and
applied for Russian citizenship. The Kyrgyz authorities had refused
to extradite him to Uzbekistan on the same charges. According to the
FMS, the applicant was a Kyrgyz citizen who had not acquired Russian
citizenship. The court rejected the applicant’s request for
refugee status as irrelevant because it had been introduced after his
arrest in Russia (see below). Lastly, the court relied on the
guarantees issued by the Uzbek Prosecutor General’s Office that
the applicant would be treated in strict compliance with internal
procedural norms and would not be persecuted on political grounds. As
to the inconsistencies in the indictments, the court pointed out that
they only concerned matters of style and the description of the
events and were thus of a technical nature, which could not prevent
the court from reaching a conclusion as to the applicant’s
indictment. Consequently, the court rejected the applicant’s
and his lawyer’s allegation of ill-treatment in the event of
extradition as unsubstantiated. The court did not address the issue
raised by the applicant’s lawyer at the hearing on 29 November
2010.
- On
14 December 2010 the applicant’s lawyer appealed. She
stressed that the regional court had failed to analyse the
applicant’s ill treatment argument, relying solely on the
guarantees issued by the Uzbek authorities. She further pointed out
that the regional court had not considered the fact that the
applicant had never been indicted in Russia for the crimes allegedly
committed there.
- On
23 December 2010 a district prosecutor’s office in
Novosibirsk informed the applicant’s lawyer that the Russian
authorities intended to extradite the applicant on 28 December
2010.
- On
24 December 2010 the applicant’s lawyer requested the
Court to apply Rule 39 in respect of the applicant. On the same date
the Court granted the lawyer’s request and advised the
Government accordingly.
- On
31 December 2010 the Government informed the Court that the
applicant would not be extradited until further notice.
- On
1 February 2011 the Supreme Court of the Russian Federation
(“the Supreme Court”) quashed the decision of 8 December
2010, finding in particular that the inconsistencies relied upon by
the applicant were fundamental to the classification of his actions.
The court also drew attention to the potential differences in
qualification of the criminal acts imputed to the applicant in
Uzbekistan and those punishable under Russian law. The court remitted
the case to the regional court for fresh consideration and extended
the applicant’s detention pending extradition until 1 March
2011.
- On
31 January 2011 the Uzbek Prosecutor General’s Office sent a
letter to the Deputy Prosecutor General. It explained that the
charges against the applicant had been brought under Articles
159-3 (a) and (b) of the UCC and contained further assurances to
the effect that the Russian Federation’s Consular staff in
Uzbekistan would be able to visit the applicant in detention.
- On
23 March 2011 the regional court reversed the Deputy Prosecutor
General’s decision of 30 September 2010 to extradite the
applicant and ordered his release. The court noted the difference
between the two indictments and concluded that this and other
procedural deficiencies did not allow the authorities to understand
the exact nature of charges against the applicant, as well as the
dates of opening and the case file numbers of the criminal
proceedings against him. The court noted differences between the
formulations of criminal acts under the UCC and the corresponding
Russian criminal law. Finally, the court referred to the European
Court’s previous judgments finding violations of Article 3 in
cases of extradition to Uzbekistan and the insufficiency of
diplomatic assurances in such situations.
- On
18 May 2011 the Supreme Court upheld the decision of 23 March
2011 on appeal. It, too, stressed the differences between the
qualification of criminal acts under Russian and Uzbek criminal law
and concluded that the charges as presented in the indictments could
not form a valid basis for extraditing the applicant.
- On
15 August 2011 the Deputy Prosecutor General informed his Uzbek
counterpart about the above court decisions, as well as about the
decision of the regional FMS to grant the applicant temporary asylum
in Russia (see below). In view of these developments, as well as the
continued application of the interim measure under Rule 39 of the
Rules of Court, the applicant’s extradition to Uzbekistan was
no longer possible under Russian law.
D. Proceedings concerning the applicant’s
detention pending extradition
- On
28 June 2010 the applicant was arrested by the police in
Novosibirsk as a person wanted by the Uzbek authorities. He was
placed in detention facility IZ-54/1, where he was held until his
release on 23 March 2011 (see below).
- On
30 June 2010 the Central District Court of Novosibirsk (“the
district court”) ordered the applicant’s detention with a
view to extradition to Uzbekistan.
- On
9 August 2010 the district court extended the applicant’s
detention pending extradition until 28 December 2010.
- The
applicant did not appeal against the decisions of 30 June and
9 August 2010.
- On
27 December 2010 the district court extended the applicant’s
detention until 28 March 2011.
- On
29 December 2010 the applicant’s lawyer lodged a statement
of appeal against the above decision.
- On
14 January 2011 the district court acknowledged receipt of the
statement of appeal and informed the applicant’s lawyer that it
would be forwarded to the regional court for consideration on
21 January 2011.
- On
26 January 2011 the regional court upheld the decision of
29 December 2010 on appeal. The court rejected the lawyer’s
arguments that the nature of the charges brought against the
applicant in Uzbekistan had not been defined and that he had not been
prosecuted for the crimes allegedly committed in Russia. The court
found that the decision of 27 December 2010 had contained
sufficient and weighty reasons for the extension of the detention
order to nine months.
- On
23 March 2011 in the course of proceedings related to the
applicant’s extradition the regional court ordered the
applicant’s immediate release. This decision became final on
18 May 2011 (see paragraphs 26 and 27 above).
E. Proceedings concerning the applicant’s
requests for Russian citizenship and refugee status
- On
29 June 2010 the regional FMS rejected the applicant’s
application for Russian citizenship on the grounds that he was being
prosecuted by the competent authorities of another State.
- On
27 October 2010 the applicant sought refugee status before the
regional FMS. He submitted that the Uzbek authorities had been
prosecuting him on “made-up” charges linked to his
alleged political and religious sympathies and that he could not seek
effective protection in Kyrgyzstan. On 21 March 2011 the regional FMS
rejected the applicant’s claim.
- On
24 March 2011 the applicant lodged a request to be granted temporary
asylum. On 21 June 2011 the regional FMS concluded that the
applicant’s rights under Articles 3 and 6 of the European
Convention on Human Rights might be infringed if he was to return to
Kyrgyzstan or Uzbekistan.
- On
28 July 2011 the General Prosecutor’s Office asked the FMS for
the Russian Federation to assess the lawfulness of the decision of
the regional FMS. On 5 August 2011 the FMS for the Russian
Federation confirmed the decision to grant the applicant temporary
asylum.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- According
to the Russian Criminal Code, foreign citizens and persons without
citizenship residing in Russia who have committed a crime outside its
borders can be extradited to a State seeking their extradition with a
view to criminal prosecution or execution of sentence (Article 13 §
2).
- According
to the Russian Code of Criminal Procedure, Russia can extradite a
foreign citizen or a person without citizenship to a State seeking
their extradition with a view to criminal prosecution or execution of
sentence if the impugned acts are considered criminal offences under
Russian legislation or the legislation of that State (Article 462 §
1).
- For
a detailed summary of the remaining aspects of the relevant domestic
law and practice on detention and extradition see Dzhurayev
v. Russiа,
no. 38124/07, §§ 32-46, 17 December 2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained that his detention pending extradition had been
unlawful and that he had not been accorded a speedy review of the
lawfulness of his detention, as provided for in Article 5 §§ 1 (f)
and 4 of the Convention, which 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:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
...
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. ...”
- The
Government contested that argument.
A. Article 5 § 1 (f)
1. Admissibility
- The
Court first of all notes that the applicant failed to appeal against
the detention order of 30 June 2010 and the extension of his
detention on 9 August 2010, both orders being issued by the
Central District Court of Novosibirsk. The Court thus finds that the
complaint relating to the lawfulness of his detention in the period
prior to 28 December 2010 should be dismissed for non-exhaustion of
domestic remedies, in line with Article 35 § 1 of the
Convention.
- As
to the lawfulness of the applicant’s detention after 28
December 2010, 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.
2. Merits
- Referring
to the Court’s previous judgments, the applicant argued that
the provisions of Russian law governing detention of persons with a
view to extradition were neither precise nor foreseeable in their
application and fell short of the “quality of law”
standard required under the Convention (Nasrulloyev v. Russia,
no. 656/06, § 72, 11 October 2007; Sultanov v. Russia,
no. 15303/09, § 86, 4 November 2010).
- The
Government reiterated that the applicant’s detention had been
lawful within the meaning of both domestic law and the Convention.
They pointed out that the applicant’s initial detention had
been authorised by the Central District Court of Novosibirsk on 30
June 2010 and then extended on 9 August 2010. The applicant had
failed to appeal against both those decisions. On 27 December 2010
the Central District Court had again extended his detention, and the
applicant’s appeal to the Novosibirsk Regional Court had been
dismissed on 26 January 2011.
- The
Court observes that between 28 June 2010 and 23 March 2011 the
applicant remained in detention with a view to his extradition to
Uzbekistan, such detention therefore falling within the ambit of
Article 5 § 1 (f) of the
Convention. It has already found that the applicant’s
complaints related to the initial period of detention and the first
extension are inadmissible (see para 47 above). It will therefore
only take into account the period between 28 December 2010 and 23
March 2011.
- It
is true that in a number of previous cases concerning the lawfulness
of detention of persons pending extradition in Russia the Court found
a violation of the said provision of the Convention. In doing so, the
Court had regard to the absence of clear legal provisions
establishing a procedure for ordering and extending detention with a
view to extradition and setting time-limits on such detention, as
well as an absence of adequate safeguards against arbitrariness (see,
for example, Dzhurayev, cited above, § 68,
and Sultanov,
cited above, § 86).
- However,
unlike the cases mentioned above, the applicant’s detention in
the present case was authorised by and extended by a competent
domestic court. The extension orders contained time-limits, in line
with the requirements of Article 109 of the Code of Criminal
Procedure and the applicant was advised of the possibility of
appealing.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been no violation of the requirement that
detention be lawful under Article 5 § 1 of the Convention,
in contrast to the cases relied on by the applicant.
- There
has accordingly been no violation of Article 5 § 1 of the
Convention.
B. Alleged violation of Article 5 § 4 of the
Convention
- The
applicant argued that the delay between the lodging of his appeal on
29 December 2010 and the Novosibirsk Regional Court’s review of
the district court’s order on 26 January 2011 had been in
breach of the requirement of speedy review contained in Article 5 §
4 of the Convention.
- The
Government argued that there had been no violation of the said
provision. They pointed out that the appeal against the decision of
the Central District Court of 27 December 2010 had been lodged by the
applicant’s representative on 29 December 2010. 1 to 11 January
2011 were official holidays in the Russian Federation. On 13 January
the district court sent a copy of the statement of appeal to the
prosecutor and on 21 January 2010 it forwarded the appeal to the
Novosibirsk Regional Court. On 26 January 2011 the Regional
Court had rejected the appeal.
- The Court reiterates that Article 5 § 4 of the
Convention proclaims the right to a speedy judicial decision
concerning the lawfulness of detention and ordering its termination
if it proves unlawful (see Baranowski v. Poland, no.
28358/95, § 68, ECHR 2000 III). Article
5 § 4 does not compel the Contracting States to set up a second
level of jurisdiction for the examination of the lawfulness of
detention. However, where domestic law provides for appeal, the
appellate body must also comply with the requirements of Article 5 §
4, for instance as concerns the speediness of the review by appeal
proceedings (see Lebedev v. Russia, no. 4493/04, §
96, 25 October 2007). At the same time,
the standard of “speediness” is less stringent when it
comes to the proceedings before the court of appeal. The Court
reiterates in this connection that the right of judicial review
guaranteed by Article 5 § 4 is primarily intended to avoid
arbitrary deprivation of liberty. Where detention is authorised by a
court, subsequent proceedings are less concerned with arbitrariness,
but provide additional guarantees aimed primarily at an evaluation of
the appropriateness of continuing the detention. Therefore, the Court
would not be concerned, to the same extent, with the speediness of
the proceedings before the court of appeal, if the detention order
under review was imposed by a court and on condition that the
procedure followed by that court had a judicial character and
afforded to the detainee the appropriate procedural guarantees
(ibid).
- Although
the number of days taken to conduct the relevant proceedings is
obviously an important aspect of the overall speed of review, it is
not necessarily in itself decisive for the question of whether a
decision has been given with the requisite speed (see Merie v. the
Netherlands (dec.), no. 664/05, 20 September 2007). What
is taken into account is the diligence shown by the authorities, any
delay attributable to the applicant and any factors causing delay for
which the State cannot be held responsible (Jablonski
v. Poland, no. 33492/96, §§ 91 94,
21 December 2000, and G.B. v. Switzerland,
no. 27426/95, §§ 34 39, 30 November
2000). The question of whether the right to a speedy decision has
been respected must thus be determined in the light of the
circumstances of each case (see Rehbock
v. Slovenia, no. 29462/95, §
84, ECHR 2000 XII).
- Turning to the circumstances of the present case, the
Court notes that the delay between the lodging of the appeal and its
review constituted twenty-eight days. The Court reiterates in that
connection that Article 5 § 1 (f) of the
Convention does not require that the detention of a person against
whom action is being taken with a view to deportation or extradition
be reasonably considered necessary, for example to prevent his
committing an offence or absconding. In this connection, Article 5 §
1 (f) provides a different level of protection from Article 5
§ 1 (c): all that is required under sub-paragraph (f)
is that “action is being taken with a view to deportation or
extradition”. It is therefore immaterial, for the purposes of
Article 5 § 1 (f), whether the underlying decision to expel can
be justified under national or Convention law (see, among others, Liu
v. Russia, no. 42086/05, § 78, 6 December 2007).
- First
of all, the Court finds that the fact that part of the period in
question fell on public holidays, as cited by the Government, cannot
in itself serve as a valid reason for a delay such as in the present
case. The Convention requirement for an act of deprivation of liberty
to be amenable to independent judicial scrutiny is of fundamental
importance in the context of the underlying purpose of Article 5 of
the Convention to provide safeguards against arbitrariness (see
Al-Nashif and Others v. Bulgaria, no. 50963/99, §
92, 20 June 2002). It is for the State to organise its judicial
system in such a way as to enable the courts to comply with the
requirements of Article 5 § 4 (see Butusov v. Russia,
no. 7923/04, § 34, 22 December 2009). While some
delay could be tolerated, exceptionally, on account of a public
holiday, the Court considers that the requirement of diligence
required the State to ensure expedite handling of pressing judicial
issues - involving the right of liberty and security of
persons - where the holidays lasted for eleven days.
- It has not been substantiated that the applicant or
his counsel contributed to the length of the appeal proceedings. It
does not appear that any complex issues were involved in the
determination of the lawfulness of the applicant’s detention by
the appeal court. Neither was it argued that proper review of the
applicant’s detention had required, for instance, the
collection of additional observations and documents pertaining to the
applicant’s personal circumstances. Apart from the issues
discussed in the previous paragraph, no other exceptional
circumstances have been relied on by the Government to justify the
delay. Having regard to the above, the Court concludes that the delay
in the present case cannot be considered compatible with the
requirement of “speediness” laid down in Article 5 §
4.
- There
has therefore been a violation of Article 5 § 4 in the present
case.
II. OTHER COMPLAINTS
- In his initial application, the applicant also
complained under Articles 3 and 13 of the Convention. However, in his
observations on the admissibility and merits, in view of the decision
not to extradite him to Uzbekistan and to grant him temporary asylum
in the Russian Federation, he asked the Court not to proceed with the
examination of these complaints. Therefore and in the absence of any
special circumstances regarding respect for the rights guaranteed by
the Convention or its Protocols which would require the continued
examination of this part of the application, the Court considers that
it is no longer justified to continue the examination of this part of
the application within the meaning of Article 37 § 1 (c) of
the Convention.
- Accordingly
this part of the application should be struck out.
III. RULE 39 OF THE RULES OF COURT
- In
view of the above findings in relation to Article 3, the Court finds
it appropriate to lift the interim measure indicated to the
Respondent Government under Rule 39 of the Rules of Court.
IV. 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 7,000 euros (EUR) in respect of non pecuniary
damage caused to him by his unlawful detention and the length of time
taken by the domestic court to review his appeal.
- The
Government disputed the reasonableness of and justification for the
amounts claimed.
- The
Court has found a violation of Article 5 § 4 of the
Convention in the present case. The Court accepts that the applicant
has suffered non pecuniary damage which cannot be compensated
for solely by the finding of a violation. The Court therefore awards
the applicant EUR 2,000 in respect of non-pecuniary damage, plus
any tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 5,802 for costs and expenses incurred
before the domestic courts and the Court. He submitted a breakdown of
the expenses incurred, which included 15.5 hours of work by Ms
Ryabinina and 32 hours of work by Ms Davidyan at the hourly rate of
EUR 100. He also claimed administrative and postal expenses in
the amount of EUR 332.
- The
Government pointed to the absence of a legal representation agreement
which would bind the applicant to pay the sums claimed.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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, and to the
fact that no violation was found in respect of part of the
application, the Court considers it reasonable to award the sum of
EUR 1,500 covering costs under all heads (see Fadeyeva v.
Russia, no. 55723/00, § 147, ECHR 2005 IV).
C. Default interest
- 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
- Declares admissible the complaints under Article
5 § 1 and under Article 5 § 4 of
the Convention in as far as they concern the period between
28 December 2010 and 23 March 2011, and the remainder of the
complaints under Article 5 inadmissible;
- Decides to strike out the complaints under
Articles 3 and 13 of the Convention;
- Holds that there has been no violation of
Article 5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Decides to lift the indication previously made
to the Respondent Government under Rule 39 of the Rules of Court;
- 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
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred 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 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
