THIRD SECTION

CASE OF KOLESIN v. RUSSIA

(Application no. 72885/10)

JUDGMENT

STRASBOURG

28 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Kolesin 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 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 72885/10) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Aleksandr Vladimirovich Kolesin (“the applicant”), on 22 November 2010.
2.  The applicant was represented by Ms O.A. Trofimova and Ms S. Dobrovolskaya, lawyers practising in Nizhniy Tagil and Moscow respectively. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3.  On 1 December 2016 the complaints concerning the applicant’s detention 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.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1960 and is detained in Nizhniy Tagil.
5.  On 20 January 2009 the Verkh-Isetskiy District Court in Yekaterinburg remanded the applicant in custody on suspicion of fraud. The authorised detention period was subsequently extended on several occasions.
6.  On 16 February 2010 the District Court determined that the case was not ready for trial. It directed the prosecution to remedy certain defects and extended the authorised period of the applicant’s detention until 22 April 2010.
7.  On 21 April 2010 the Sverdlovsk Regional Court heard an appeal against that detention order and decided that the applicant could be released on bail. By a supplementary decision taken on the following day in the absence of the applicant and his representatives, the Regional Court fixed the time-limit for posting bail until 11 May 2010. On 29 April 2010 that decision was sent by fax to the remand prison where the applicant was held. He was however unable to post the bail because the District Court did not have a deposit account. The applicant remained in custody.
8.  On 12 May 2010 the District Court held that the applicant must be re-detained for his failure to comply with the bail conditions. It did not set any time-limit for the application of the custodial measure.
9.  On 2 June 2010 the Regional Court quashed the detention order, finding that the detention order had lacked a basis in fact. It annulled the custodial measure and ordered the applicant’s release.
10.  The applicant was released on 4 June 2010.
11.  The conditions of the applicant’s detention in remand prison IZ-66/1 can be summarised as follows:
(a)  Cell 622, from January to June 2009, measured 30 square metres and accommodated 20 to 25 persons who took turns to sleep; windows were not glazed; the toilet was not separated from the living area;
(b)  Cell 129, June and July 2009, 9 square metres and 6 inmates;
(c)  Cell 407, July 2009, 12 square metres and 12 to 14 inmates;
(d)  Cell 408, August 2009 to April 2010, same as above;
(e)  Cell 155, April 2010, 15 square metres;
(f)  Cell 134, May 2010, 14 square metres for 8 inmates.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
12.  The applicant complained that the conditions of his detention had been in breach of Article 3 of the Convention, which reads as follows:
“No one shall be subjected ... to inhuman or degrading treatment ...”
13.  On 28 March 2017 the Government submitted a unilateral declaration in respect of this complaint, inviting the Court to strike this part of the case out of its list. They acknowledged that from 20 January 2009 to 4 June 2010 the applicant had been detained in in conditions which did not comply with the requirements of Article 3 of the Convention, and offered to pay him 6,125 euros (EUR). The remainder of the declaration read:
“The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”
14.  The applicant did not accept the Government’s offer.
15.  The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases, in particular if “it is no longer justified to continue the examination of the application” (Article 37 § 1 (c)), on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued. To this end, the Court must examine carefully the declaration in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
16.  Since its first judgment concerning the inhuman and degrading conditions of detention in Russian penitentiary facilities (see Kalashnikov v. Russia, no. 47095/99, ECHR 2002‑VI), the Court found similar violations in many cases against Russia which concerned the conditions of detention in remand prisons (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012). It follows that this complaint is based on clear and extensive case-law of the Court. The Court is also satisfied that the Government acknowledged a violation of Article 3 of the Convention and undertook to pay compensation in the amount which is not unreasonable both in absolute terms and in relation to the Court’s awards in similar cases.
17.  The Court therefore considers that it is no longer justified to continue the examination of this complaint. It is therefore appropriate to strike the case out of the list in the part concerning this complaint.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
18.  The applicant complained under Article 5 of the Convention that his detention from 23 April to 12 May and from 2 to 4 June 2010 had not had a lawful basis and that the decision to re-detain him on 12 May 2010 had been arbitrary. 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 ...”
Section 3.01	A.  Admissibility
19.  The Government submitted that the complaint about the detention period from 21 April to 11 May 2010 was belated because the application had been submitted more than six months after the end of that period.
20.  The Court notes that the complaint related to a period of detention during which the bail decision had been first issued and subsequently reversed. It constituted therefore a continuous situation which ended with the Regional Court’s decision of 2 June 2010. As the applicant lodged his complaint on 22 November 2010, that is to say within six months from that decision, it was not belated.
21.  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.
Section 3.02	B.  Merits
22.  The Government submitted that in the period from 21 April to 11 May 2010 the applicant’s detention had been based on Article 106(8) of the Code of Criminal Procedure which established that the previously imposed measure of restraint should continue until such time as the bail had been posted. The Government did not comment on the subsequent period of detention. The applicant maintained his complaint.
23.  It is well established in the Court’s case-law under the sub-paragraphs of Article 5 § 1 that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 and the notion of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-69, ECHR 2008).
24.  On 21 April 2010 the Regional Court ordered the applicant’s release on bail. However, the decision setting the time-limit for posting bail was issued in the absence of the applicant and his counsel and reached them only eight days later. It is not disputed, moreover, that it was materially impossible for the applicant to post bail because the competent district court did not have a deposit account. There is no evidence that the Russian authorities took any steps to open such an account or considered any alternative arrangements for receiving the amount of the bail. The Court finds therefore that, despite complying with the letter of national law, there has been an element of bad faith on the part of the authorities which indicates that the applicant’s detention in that period was arbitrary.
25.  The Court further observes that the detention order of 12 May 2010 was subsequently quashed by the Regional Court on the ground that it had had no basis in fact. That finding amounts to acknowledging that it had been arbitrary or, in Convention terms, tainted with a “gross and obvious irregularity”, rending the ensuing period of the applicant’s detention unlawful (see Mooren v. Germany [GC], no. 11364/03, §§ 72-75, 9 July 2009, and also, for a summary of recent case-law, Yefimenko v. Russia, no. 152/04, §§ 102‑07, 12 February 2013).
26.  Finally, even though on 2 June 2010 the Regional Court ordered the applicant’s release, the decision was not given effect immediately and the applicant remained in custody until 4 June 2010. His detention in that period had had no legal basis and was therefore unlawful.
27.  In the light of the above considerations, the Court finds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 21 April to 4 June 2010.
Article IV.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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.”
29.  The applicant claimed 51,657,243 euros (EUR) in respect of pecuniary and non-pecuniary damage.
30.  The Government submitted that Article 41 should be applied in accordance with the Court’s established case-law.
31.  Making its assessment on an equitable basis, and deducting the sum payable to the applicant under the unilateral declaration (see Urazov v. Russia, no. 42147/05, § 106, 14 June 2016), the Court awards the applicant EUR 1,375 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
32.  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, having regard to the terms of the Government’s declaration, and the arrangements for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 3 of the Convention about the inadequate conditions of the applicant’s detention;

2.  Declares the complaint concerning the applicant’s detention after 21 April 2010 admissible;

3.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention from 21 April to 4 June 2010;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,375 (one thousand three hundred and seventy-five 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;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda 
	Deputy Registrar	President