THIRD SECTION

CASE OF BOCHAROV v. RUSSIA

(Application no. 31917/07)

JUDGMENT

STRASBOURG

20 September 2016

This judgment is final but it may be subject to editorial revision.
In the case of Bocharov 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 30 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 31917/07) 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 a Russian national, Mr Vladimir Iosifovich Bocharov (“the applicant”), on 14 June 2007.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  The applicant alleged, in particular, that the proceedings for review of lawfulness of his pre-trial detention had not been compatible with the Convention standards.
4.  On 12 September 2014 the complaints under Article 5 § 4 of the Convention were 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
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1955 and lives in Nizhniy Tagil, the Sverdlovsk Region.
6.  On 14 October 2005 the applicant voluntarily came to the police to report that he had stabbed his girlfriend Ms O. to death. On the same date he was charged with her murder.
7.  On 15 October 2005 the applicant was placed in custody in remand prison no. 3 of Nizhniy Tagil.
8.  On 15 November 2005 the applicant underwent an outpatient psychiatric expert examination, which established that he had committed manslaughter while in the state of temporary incapacity («состояние физиологического аффекта»).
9.  On 9 December 2005 the investigation file was transferred for trial to the Leninskiy District Court of Nizhniy Tagil (“the District Court”).
10.  On an unspecified date the District Court appointed counsel to the applicant, Mr K.
11.  On 28 March 2006 the District Court ordered another outpatient psychiatric expert examination of the applicant upon the prosecutor’s request and ordered that the measure of restraint remain unvaried.
12.  On 2 June 2006 the District Court held a hearing on extension of the term of the pre-trial detention in the applicant’s absence. As Mr K. was on leave, the District Court appointed Mr L. as the applicant’s counsel. The District Court extended the applicant’s pre-trial detention until 2 September 2006.
13.  On 29 June 2006 the applicant was served with a copy of the detention order of 2 June 2006. He appealed against it on 30 June 2006.
14.  On 7 July 2006 the District Court ordered that the applicant be subject to an inpatient psychiatric expert examination and ordered that the measure of restraint remain unvaried.
15.  On 24 August 2006 the District Court held a hearing on extension of the term of the pre-trial detention in the applicant’s absence. Given that Mr K. was again on leave, the District Court appointed Ms S. as the applicant’s counsel for the hearing. The District Court extended the applicant’s pre-trial detention until 2 December 2006.
16.  On 28 August 2006 the applicant was admitted to the regional psychiatric hospital to undergo an inpatient examination pursuant to the District Court’s order of 7 July 2006.
17.  On 25 September 2006 a report of the inpatient psychiatric expert examination was drawn up stating that the applicant had been fully capable of understanding the consequences of his actions at the moment of the crime.
18.  On 26 October 2006 the District Court, having examined the criminal case against the applicant, found him guilty of murder of Ms O. and sentenced him to eleven years’ imprisonment.
19.  On 8 December 2006 the Sverldovsk Regional Court (“the Regional Court”) examined in the absence of the applicant or any counsel on his behalf the statement of appeal of 30 June 2006 against the detention order of 2 June 2006 and dismissed it. The delay in examining the appeal was not explained.
20.  On 22 December 2006 the applicant was served with a copy of the detention order of 24 August 2006.
21.  On 25 December 2006 the applicant requested the District Court to restore the time‑limit for lodging an appeal against the detention order of 24 August 2006.
22.  On 15 January 2007 the District Court granted the request noting that the applicant had been served with a copy of the detention order “untimely”.
23.  On 23 January 2007 the applicant appealed against the detention order of 24 August 2006.
24.  On 14 February 2007 the Regional Court upheld the applicant’s conviction of 26 October 2006 on appeal. The applicant was notified of the outcome of the appeal hearing on 5 April 2007.
25.  On 30 March 2007 the Regional Court examined the applicant’s statement of appeal of 23 January 2007 against the detention order of 24 August 2006 in the absence of the applicant or any counsel on his behalf and dismissed it. The delay in examining the appeal remained unexplained.
26.  The date on which the applicant was served with a copy of the appeal decision of 8 December 2006 is at dispute between the parties. According to the Government, the applicant was served with it on 7 June 2007. To support their claim, they enclosed a copy of acknowledgement of receipt dated 7 July 2006 stating that the applicant had been served on that date with a copy of a ruling of 7 July 2006. According to the applicant, he was served with the copy after the introduction of the present application before the Court, that is, after 14 June 2007.
27.  On 2 April 2013 the Cherdynskiy District Court of the Perm Region released the applicant on parole.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
28.  A court may not examine a request to extend the term of a pre‑trial detention in a suspect’s absence, save for cases where a suspect is undergoing an inpatient psychiatric expert examination or where there are other circumstances excluding the possibility of summoning a suspect to a hearing. In such cases the suspect’s legal representative must participate in a hearing (Article 109 § 13 of the Russian Code of Criminal Procedure (“the CCP”). In cases governed by Article 109 § 13 of the CCP, a judge shall make a ruling on examining the issue of extending the term of detention in a suspect’s absence noting the reasons for which a suspect cannot attend a hearing (Article 109 § 14 of the CCP).
29.  For the summary of other provisions of the Russian law governing detention on remand and relevant practice of the domestic courts see Pyatkov v. Russia (no. 61767/08, §§ 48-68, 13 November 2012).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
30.  The applicant complained of a violation of his rights set out in Article 5 § 4 of the Convention on two grounds. Firstly, he alleged that his appeals against the decisions of the District Court of 2 June and 24 August 2006 had not been examined “speedily”. Secondly, he complained that he had not been afforded an opportunity to be present or to effectively represent his interests at the hearings of 2 June, 24 August and 8 December 2006 and at that of 30 March 2007. Article 5 § 4 of the Convention 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.”
Section 3.01	A.  The parties’ submissions
(a)	1.  The Government
31.  The Government submitted, referring to Article 109 § 13 of the CCP, that the hearings of 2 June and 24 August 2006 had taken place in the applicant’s absence because between 28 March and 8 June 2006 he had been subject to an outpatient psychiatric expert examination and between 7 July and 25 September 2006 he had been subject to an inpatient psychiatric expert examination. The District Court had decided that it had been possible to extend the term of the applicant’s pre-trial detention in his absence owing to his unavailability.
32.  The District Court had appointed Mr L. to represent the applicant at the hearing of 2 June 2006 and Ms S. at that of 24 August 2006. Both counsel had been sufficiently aware of the circumstances of the applicant’s criminal case, which, in the Government’s submission, had been a fairly simple one as it had involved only one suspect. The court-appointed lawyers had had enough time to study the elements of the case and had ensured effective legal representation of the applicant’s interests.
33.  The Government emphasised that the applicant had not requested to ensure his personal attendance of appeal hearings in the statements of appeal of 30 June 2006 and 23 January 2007.
34.  The appeal against the decision of 2 June 2006 had been examined five months and eight days after its lodging on 30 June 2006 and receipt by the court on the same date; the one against the decision of 24 August 2006 had been examined one month and twenty-three days after its receipt by the court on 5 February 2007. The Government admitted that the appeals against the detention orders had not been examined “speedily”.
35.  However, they claimed that the applicant had not complied with the six-month rule in respect of the detention order of 2 June 2006 upheld on appeal on 8 December 2006. They relied in this respect on the judgment of G.O. v. Russia (no. 39249/03, § 91, 18 October 2011).
36.  The Government further claimed that the applicant had appealed against the decision of 24 August 2006 only on 23 January 2007; the delay in lodging the appeal had been justified so that the Regional Court had accepted the belatedly submitted statement of appeal. The Government asserted that, owing to the fact that on 14 February 2007 the applicant had been convicted in the final instance, by 30 March 2007 the decision of 24 August 2006 had no longer served as grounds for the applicant’s detention and, accordingly, “the judicial review of lawfulness of that decision had been deprived of any meaning owing to the lack of opportunity to make a decision to release the applicant”. They invited the Court to declare this part of the complaint manifestly-ill-founded.
(b)	2.  The applicant
37.  The applicant maintained his complaints. He submitted that Article 109 § 13 of the CCP could not serve as legal grounds justifying his absence from the District Court’s hearings of 2 June and 24 August 2006 as on those dates he had been detained in the remand prison and his inpatient psychiatric expert examination had commenced only on 28 August 2006. Counsel Mr L. and Ms S. had objected to holding the hearings in the applicant’s absence but the District Court had ignored the objections.
38.  The applicant insisted that through the District Court’s fault he had become aware of the decision of 24 August 2006 only on 22 December 2006.
39.  The applicant further submitted that the length of the appeal proceedings against the detention orders of 2 June and 24 August 2006 had been incompatible with the requirements of Article 5 § 4 of the Convention.
Section 3.02	B.  Admissibility
40.  Turning to the Government’s objection concerning the compliance with the six-month rule in respect of the complaints pertaining to the detention order of 2 June 2006 and the appeal decision of 8 December 2006, the Court reiterates that the six-month period cannot start to run until the applicant has effective and sufficient knowledge of the final domestic decision. Furthermore, it is for the State which relies on the failure to comply with the six-month time-limit to establish the date when the applicant became aware of the final domestic decision (see Baghli v. France, no. 34374/97, § 31, ECHR 1999‑VIII).
41.  The Court observes that the Government supported their plea of non‑compliance with the six-month rule with a reference to the case of G.O. v. Russia (cited above), in which the complaint under Article 5 § 4 of the Convention was introduced more than six months after the date on which an applicant had been informed of the outcome of an appeal hearing on extension of his detention (see G.O. v. Russia, cited above, § 33). The Court observes in this connection that in the present case it is not entirely clear when the applicant, absent from the hearing of 8 December 2006 and unrepresented by counsel on that date (see paragraph 19 above), was informed of its outcome.
42.  The Court notes the inconsistency in the Government’s submission regarding the date of serving the appeal decision of 8 December 2006 on the applicant (see paragraph 26 above). Nevertheless, it considers that it is not its task to resolve internal contradictions in the submissions made before it. It thus accepts that the Government have asserted that the applicant was served with a copy of the appeal decision of 8 December 2006 on 7 June 2007.
43.  In view of the above and in the absence of the Government’s claim that the applicant became aware of the appeal decision in question before June 2007, the Court considers that the applicant complied with the six‑month rule in respect of his complaint concerning the detention order of 2 June 2006 and the appeal decision of 8 December 2006. The Government’s objection must thus be dismissed.
44.  The Court further notes that the applicant’s complaints under Article 5 § 4 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
Section 3.03	C.  Merits
(a)	1.  Whether the appeals on the lawfulness of the applicant’s detention were decided “speedily”
45.  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 detention, also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of detention and the ordering of its termination if it proves unlawful. The question whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case. There is a special need for a swift decision determining the lawfulness of a detention in cases where a trial is pending, as the defendant should benefit fully from the principle of the presumption of innocence (see, with further references, Idalov v. Russia [GC], no. 5826/03, §§ 154-55, 22 May 2012).
46.  Turning to the circumstances of the present case, the Court observes that the applicant appealed against the detention orders of 2 June and 24 August 2006 on 30 June 2006 and 23 January 2007, respectively. The Regional Court examined the appeals on 8 December 2006 and 30 March 2007. Contrary to the Government’s claim that the length of the appeal proceedings should be calculated from the dates on which the statements of appeal were received by the court, the Court points out that it has been its constant practice to calculate the length of the appeal proceedings from the date of lodging a statement of appeal (see Idalov, cited above, § 156). It follows that it took the Regional Court five months and nine days to examine the appeal against the detention order of 2 June 2006 and two months and five days to examine that against the detention order of 24 August 2006. The Government have admitted that the length of the appeal proceedings on both occasions was not compatible with the “speediness” requirement of Article 5 § 4 of the Convention (see paragraph 34 above). Nevertheless, they have not provided any justification for such significant delays.
47.  The Court agrees with the Government’s assertion (see paragraph 32 above) that the criminal case against the applicant was not overly complex. There is nothing in the materials before the Court to suggest that either the applicant or the lawyers representing him contributed to the length of the appeal proceedings. On the contrary, the applicant was informed of the outcome of the hearing of 24 August 2006 only on 22 December 2006 through no fault of his own (see paragraph 20 above). Accordingly, the entire length of both sets of the appeal proceedings in the present case was attributable to the authorities.
48.  The Court reiterates that where an individual’s personal liberty is at stake, the Court has set up very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention. The Court has found a violation of Article 5 § 4 of the Convention in Russian cases where appeal proceedings lasted twenty-six (see Mamedova v. Russia, no. 7064/05, §§ 96-97, 1 June 2006) and twenty‑seven days (see Pichugin v. Russia, no. 38623/03, §§ 154-56, 23 October 2012), stressing, in each case, that their entire duration was attributable to the authorities. The present case is even more striking. Fully sharing the Government’s view (see paragraph 36 above) that a judicial review of lawfulness of the pre-trial detention after the expiry of the authorised term of the detention in question and following a detainee’s criminal conviction in two instances is divested of any meaning, the Court considers that such a blatant situation in itself is indicative of disrespect of the guarantees of Article 5 § 4 of the Convention.
49.  Having regard to its established case-law on the issue and the circumstances of the present case, the Court considers that the time it took the domestic courts to examine the applicant’s appeals against the detention orders of 2 June and 24 August 2006 cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention. There has therefore been a violation of that provision.
(b)	2.  Absence of the applicant from the hearings concerning the lawfulness of his pre-trial detention
50.  In the light of the finding in paragraph 49 above, the Court does not need to determine whether the applicant’s absence from the hearings of 2 June, 24 August and 8 December 2006, as well from that of 30 March 2007 also entailed a violation of Article 5 § 4 of the Convention.
Article IV.	II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
51.  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.”
Section 4.01	A.  Damage
52.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage caused by his moral sufferings and deteriorated health.
53.  The Government submitted that the amount claimed was excessive.
54.  The Court awards the applicant EUR 5,000 in respect of non‑pecuniary damage.
Section 4.02	B.  Default interest
55.  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 under Article 5 § 4 of the Convention admissible;

2.  Holds that there has been a violation of Article 5 § 4 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand 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, plus any tax that may be chargeable;
(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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President