Last Updated on February 10, 2021 by LawEuro
THIRD SECTION
CASE OF PODKORYTOV AND OTHERS v. RUSSIA
(Applications nos. 9867/06 and 9 others – see appended list)
JUDGMENT
STRASBOURG
21 January 2021
This judgment is final but it may be subject to editorial revision.
In the case of Podkorytovand Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Dmitry Dedov,
Peeter Roosma, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having deliberated in private on 17 December 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Russian Government (“the Government”) were given notice of the applications.
THE FACTS
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the excessive length of their pre-trial detention.Some applicants also raised other complaints under the provisions of the Convention.
THE LAW
I. JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. The Government’s request to strike out some APPLICATIONS under Article 37§ 1 of the Convention
A. Applications nos. 9867/06 and 71475/17
6. The applicants in applications nos. 9867/06 and 71475/17 complained about their poor conditions of pre-trial detention and the lack of an effective remedy therefor.
7. The Government submitted unilateral declarations in these two applications with a view to resolving the issues raised by these complaints. They acknowledged a violation of Article 3 of the Convention due to inadequate conditions of the applicants’ detention and of Article 13 of the Convention related to lack of an effective remedy to complain about such conditions. They offered to pay the applicants the sums indicated in the appended table and invited the Court to strike the applications out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amounts would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay these amounts within the above-mentioned three-month period, the Government undertook to pay simple interest on them, from the 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. The payment will constitute the final resolution of the cases in the part related to the poor conditions of the applicants’ detention.
8. The applicants informed the Court that they agreed to the terms of the declaration.
9. The Court finds that, following the applicants’ express agreement to the terms of the declarations made by the Government, this part of the applications should be treated as a friendly settlement between the parties. It therefore takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and the Protocols thereto and finds no reasons to justify the continued examination of the applications in this part.
10. In view of the above, it is appropriate to strike applications nos. 9867/06 and 71475/17 out of the list in the part covered by the friendly settlement.
B. Application no. 77647/17
11. The Government also submitted a unilateral declaration in case no. 77647/17, covering the applicant’s complaints about the conditions of his pre-trial detention and a part of his complaints under Article 5 § 4 about excessive length of judicial review of detention, acknowledging violations of the Convention in this respect and offering to pay the applicant 3,500 euros (EUR), plus any tax that may be chargeable on that amount to him. The Court has not received a response from the applicant accepting the terms of the declarations.
12. The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:
“… for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
13. Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI).
14. The Court has established clear and extensive case-law concerning complaints relating to inadequate conditions of detention and lack of speedy review of the detention matters (see, for example, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, and Idalov v. Russia [GC], no. 5826/03, 22 May 2012).
15. Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application in the abovementioned part (Article 37 § 1 (c)). It is further satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application in the relevant part (Article 37 § 1 in fine).
16. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
17. In view of the above, it is appropriate to strike application no. 77647/17 in the part covered by the Government’s unilateral declaration out of the list of cases.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
18. The applicants complained principally that their pre-trial detention had been unreasonably long. They relied on Article 5 § 3 of the Convention, which reads as follows:
Article 5 § 3
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be … entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
19. The Court observes that the general principles regarding the right to trial within a reasonable time or to release pending trial, as guaranteed by Article 5 § 3 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI, and McKay v. the United Kingdom [GC], no. 543/03, §§ 41-44, ECHR 2006‑X, with further references).
20. In the leading case of Dirdizov v. Russia, no. 41461/10, 27 November 2012, the Court already found a violation in respect of issues similar to those in the present case.
21. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the applicants’ pre-trial detention was excessive.
22. These complaints are therefore admissible and disclose a breach of Article 5 § 3 of the Convention.
IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW
23. Some applicants submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Idalov v. Russia [GC], no. 5826/0322 May 2012, related to various deficiencies, including lack of speediness, in judicial examination of detention matters; Tomov and Others v. Russia, nos. 18255/10 and 5 others, 9 April 2019, concerning poor conditions of transport of detainees; Zadumov v. Russia, no. 2257/12, 12 December 2017, Kasparov and Others v. Russia (no. 2), no. 51988/07, 13 December 2016, and Gryaznov v. Russia, no. 19673/03, 12 June 2012, concerning unfair court proceedings in view of the lack of practical opportunities to adduce evidence in support of applicant’s version of events, including by questioning defence witnesses, or given the court’s failure to address the decisive argument and to motivate the decision accordingly; Svinarenko and Slyadnevv. Russia [GC], nos. 32541/08 and 43441/08, ECHR 2014 (extracts), related to placement in a metal cage during court hearings; and Korshunov v. Russia, no. 38971/06, 25 October 2007, concerning lack of an enforceable right to compensation for a violation of a right guaranteed by Article 5 § 3 of the Convention.
V. REMAINING COMPLAINTS
24. Some applicants also raised other complaints under various Articles of the Convention.
25. The applicants in applications nos. 23804/10 and 25066/10 raised a number of additional complaints under various Convention provisions all related to alleged deficiencies and outcome of the criminal proceedings against them. In this connection, the Court reiterates its finding that the fairness of the judicial proceedings against the applicants was undermined by the limitations imposed on the rights of the defence by the absence of an opportunity to adduce evidence in support of their version of events, in particular to question the main defence witness, as well as the courts’ failure to address the important argument raised by the defence in relation to the expiration of the statutory limitation period. It therefore declares the remaining complaints related to the criminal proceedings raised in applications nos. 23804/10 and 25066/10 admissible but considers it unnecessary to examine them separately (see Vladimir Romanov v. Russia, no. 41461/02, § 107, 24 July 2008).
26. The Court has examined the remainder of the complaints raised in the applications listed in the appended table, as well as the Government’s argument raised in respect of application no. 23804/10 that the applicant did not, at any point in the proceedings before the Court, complain about her placement in a metal cage in court hearings, and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the applications must be rejected in accordance with Article 35 § 4 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
27. 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.”
28. Regard being had to the documents in its possession and to its case‑law (see, in particular, Pastukhov and Yelagin v. Russia, no. 55299/07, 19 December 2013), the Court considers it reasonable to award the sums indicated in the appended table. It therefore dismisses the remainder of the claims for just satisfaction raised by some of the applicants.
29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Decides to strike applications nos. 9867/06 and 71475/17 out of its list of cases in accordance with Article 39 of the Convention as regards the complaints concerning the inadequate conditions of detention and lack of an effective remedy to complain about it, as specified in the Government’s unilateral declarations;
3. Takes note of the terms of the Government’s declaration in respect of application no. 77647/17, and of the arrangements for ensuring compliance with the undertakings referred to therein;
4. Decides to strike application no. 77647/17 in the part covered by the unilateral declaration out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
5. Declares the complaints concerning the excessive length of pre-trial detentionand the other complaints under the well-established case-law of the Court, as set out in the appended table, as well as the complaints related to various deficiencies in the course of and outcome of the criminal proceedings against the applicants in applications nos. 23804/10 and 25066/10 admissible, and the remainder of the applications inadmissible;
6. Holds that these complaints disclose a breach of Article 5 § 3 of the Convention concerning the excessive length of pre-trial detention;
7. Holds that there has been a violation of the Convention as regards the other complaints raised under well-established case-law of the Court (see appended table);
8. Holds that it is not necessary to examine separately the remaining complaints about the deficiencies and outcome of the criminal proceedings, raised by the applicants in applications nos. 23804/10 and 25066/10;
9. Holds
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
10. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 21 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Darian Pavli
Acting Deputy Registrar President
____________
APPENDIX
List of applications raising complaints under Article 5 § 3 of the Convention
(excessive length of pre-trial detention)
| No. | Application no. Date of introduction |
Applicant’s name Year of birth |
Representative’s name and location | Period of detention | Court which issued detention order/examined appeal | Length of detention | Specific defects | Other complaints under well‑established case‑law | Amount awarded for pecuniary and non‑pecuniary damage and costs and expenses per applicant (in euros)[i] |
| 1. | 9867/06 30/01/2006 |
Pavel Vladimirovich PODKORYTOV 1968 |
Makarov Aleksandr Leonidovich Moscow |
15/09/2005 to 20/06/2007 |
Verkh-Isetskiy District Court of Yekaterinburg; KirovskiyDistrct Court of Yekaterinburg; Sverdlovsk Regional Court | 1 year(s) and 9 month(s) and 6 day(s) | fragility of the reasons employed by the courts;use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding; failure to examine the possibility of applying other measures of restraint; |
Art. 5 (4) – deficiencies in proceedings for review of the lawfulness of detention – the extension order of 05/04/2006 was issued by a judge in the absence of the applicant and his lawyer and without holding a hearing. | 2,600 (awarded by the Court) and 3,960 (on the basis of the Government’s unilateral declaration accepted by the applicant) |
| 2. | 23804/10 06/04/2010 |
Inna Valentinovna ANDRONOVA 1952 |
28/05/2008 to 01/10/2010 |
Basmannyy District Court of Moscow; Khamovnicheskiy District Court of Moscow; Moscow City Court; Supreme Court of Russia |
2 year(s) and 4 month(s) and 4 day(s) | fragility of the reason employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint; white-collar crime |
Art. 3 – inadequate conditions of detention during transport – numerous occasions of transport from the detention facility to the courthouses from 15/02/2009 to 19/11/2010; overcrowding, lengthy (up to 4 hours) trips; restricted access to toilet; the Government acknowledged a violation of Article 3 of the Convention in respect of at least 3 instances of transport in these conditions, Art. 5 (4) – excessive length of judicial review of detention – the detention order of 23/11/2009 was only examined on 19/04/2010 by the appeal court. The Government acknowledged the violation of Article 5 § 4 of the Convention in this respect, Art. 5 (4) – deficiencies in proceedings for review of the lawfulness of detention – the Moscow City Court in its rulings of 24/05/2010 and 09/06/2010 refused to examine the applicants’ appeals against decisions in relation to applications for release made on 31/03/2010, 16/04/2010 and 21/04/2010 by the Khamovnicheskiy District Court. The Government noted that the refusal ran counter to the requirements of the Russian Code on Criminal Procedure and the rulings of the Constitutional Court of Russia and acknowledged the violation of Article 5 § 4 in this respect, Art. 6 (1) – and Art. 6 (3) (d) – unfair trial in view of restrictions on the right to examine witnesses – Both the trial court (Khamovnicheskiy District Court of Moscow on 01/10/2010) and appeal court (the Moscow City Court on 12/04/2011) refused to question Mr Z., the main co-defendant accused of having organised the chain of criminal activities together with the applicant, who made himself available to the court for questioning, but whose testimony was nevertheless not accepted. Art. 6 (1) – unfair trial in view of the failure to address the main argument and motivate that decision: The courts also failed to address the applicant’s argument that the civil claims of the victims had been time-barred in violation of Article 6 § 1 of the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, Bogatova v. Ukraine, no. 5231/04, § 18, 7 October 2010, and Velilayeva v. Russia, no. 3811/17, [Committee], 6 October 2020). The Government acknowledged that the refusal of the Russian courts was in violation of the guarantees of Article 6 of the Convention, although the Government noted that those violations did not “corrupt the essence of the justice” in the applicant’s case. |
4,300 | |
| 3. | 25066/10 09/04/2010 |
Elvira Kuzminichna OBENYAKOVA 1963 |
28/05/2008 to 01/10/2010 |
Basmannyy District Court of Moscow; Khamovnicheskiy District Court of Moscow; Moscow City Court; Supreme Court of Russia |
2 year(s) and 4 month(s) and 4 day(s) | fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint; | Art. 3 – inadequate conditions of detention during transport – numerous occasions of transport from the detention facility to the courthouses from 15/02/2009 to 19/11/2010; overcrowding, lengthy (up to 4 hours) trips; restricted access to toilet; the Government acknowledged a violation of Article 3 of the Convention in respect of at least 3 instances of transport in these conditions, Art. 3 – use of metal cages and/or other security arrangements in courtrooms – placement of the applicant in a metal cage during the trial hearings before the Khamovnicheskiy District Court of Moscow, Art. 5 (4) – excessive length of judicial review of detention – the detention order of 23/11/2009 was only examined on 19/04/2010 by the appeal court. The Government acknowledged the violation of Article 5 par 4 of the Convention in this respect, Art. 5 (4) – deficiencies in proceedings for review of the lawfulness of detention – the Moscow City Court in its rulings of 24/05/2010 and 09/06/2010 refused to examine the applicants’ appeals against decisions in relation to applications for release made on 31/03/2010, 16/04/2010 and 21/04/2010 by the Khamovnicheskiy District Court. The Government noted that the refusal ran counter to the requirements of the Russian Code on Criminal Procedure and the rulings of the Constitutional Court of Russia and acknowledged the violation of Article 5 § 4 in this respect, 6 (3) (d) – unfair trial in view of restrictions on the right to examine witnesses – Both the trial court (Khamovnicheskiy District Court of Moscow on 01/10/2010) and appeal court (the Moscow City Court on 12/04/2011) refused to question Mr Z., the main co-defendant accused of having organised the chain of criminal activities together with the applicant, who made himself available to the court for questioning, but whose testimony was nevertheless not accepted. Art. 6(1) – unfair trial in view of the failure to address the main argument and motivate that decision: The courts also failed to address the applicant’s argument that the civil claims of the victims had been time-barred in violation of Article 6 § 1 of the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I, Bogatova v. Ukraine, no. 5231/04, § 18, 7 October 2010, and Velilayeva v. Russia, no. 3811/17, [Committee], 6 October 2020). The Government acknowledged that the refusal of the Russian courts was in violation of the guarantees of Article 6 of the Convention, although the Government noted that those violations did not “corrupt the essence of the justice” in the applicant’s case. |
9,750 | |
| 4. | 54778/17 10/07/2017 |
Sergey Aleksandrovich PONOMAREV 1978 |
27/03/2014 to 27/04/2017 |
Basmannyy District Court of Moscow, Mosow City Court |
3 year(s) and 1 month(s) and 1 day(s) | collective detention orders; failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint;as the case progressed |
4,200 | ||
| 5. | 71475/17 26/09/2017 |
Aleksandr Sergeyevich IVANOV 1996 |
Ivanov Lev Nikolayevich Astrakhan |
23/03/2017 to 21/03/2018 |
Sovetskiy District Court of Astrakhan, Astrakhan Regional Court | 11 month(s) and 27 day(s) | fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;failure to assess the applicant’s personal situation reducing the risks of re‑offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint. | 1,300 (awarded by the Court) and 4,500 (on the basis of the Government’s unilateral declaration accepted by the applicant) |
|
| 6. | 77647/17 10/03/2018 |
Evans Chipili NSAMA 1994 |
PodnosovYegorSergeyevich St Petersburg |
28/05/2017 to 26/12/2017 |
Kuybyshevskiy District Court of St Petersburg, St Petersburg City Court |
6 month(s) and 29 day(s) | fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint. | 1,300 (awarded by the Court) and 3,500 (on the basis of the Government’s unilateral declaration) |
|
| 7. | 83078/17 29/11/2017 |
GeorgiyGeorgiyevich FOMCHENKOV 1976 |
Pavlov Ivan Yuryevich St Petersburg |
05/12/2016 to 01/04/2019 |
Military Court of the Moscow Circuit; Moscow City Court |
2 year(s) and 3 month(s) and 28 day(s) | fragility of the reasons employed by the courts; use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice;failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint. | Art. 3 – inadequate conditions of detention during transport – 31/05/2017 and 21/06/2017: transport by van, 0.5m2 of personal space, poor light, restricted access to toilet, lack of food. | 4,100 |
| 8. | 8286/19 04/02/2019 |
Dmitriy Viktorovich KUTNYAKOV 1989 |
23/10/2015 to 18/04/2019 |
Meshchanskiy District Court of Moscow, Moscow City Court | 3 year(s) and 5 month(s) and 27 day(s) | fragility of the reasons employed by the courts; failure to conduct the proceedings with due diligence during the period of detention. | 4,700 | ||
| 9. | 12698/19 12/02/2019 |
Aleksandr Yevgenyevich YEFIMOV 1958 |
09/03/2018 25/06/2020 |
Vsevolzhsk Town Court of the Leningrad Region; Primorskiy District Court of St Petersburg; Leningrad Regional Court | 2 year(s) and 3 month(s) and 17 day(s) | use of assumptions, in the absence of any evidentiary basis, of the risks of absconding or obstructing justice; failure to conduct the proceedings with due diligence during the period of detention. | Art. 5 (4) – excessive length of judicial review of detention – detention orders of 03/10/2018 and 04/10/2018 were only reviewed on appeal on 22/11/2018 | 3,700 | |
| 10. | 17632/19 16/05/2019 |
ValeriyIgorevich NIKOLAYEV 1990 |
07/05/2017 pending |
Zheleznogorsk Town Court of the Krasnoyarsk Region; Leninskiy District Court of Krasnoyarsk; Krasnoyarsk Regional Court | More than 3 year(s) and 5 month(s) and 18 day(s) | failure to conduct the proceedings with due diligence during the period of detention;as the case progressed:failure to assess the applicant’s personal situation reducing the risks of re-offending, colluding or absconding;failure to examine the possibility of applying other measures of restraint. | Art. 5 (5) – lack of, or inadequate compensation, for the violation of Article 5 § 3 of the Convention | 4,700 |
[i] Plus any tax that may be chargeable to the applicants.
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