LYUBIMOV v. RUSSIA - 60249/13 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2016] ECHR 866 (11 October 2016)

In the case of Lyubimov 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 20 Septebmer 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 60249/13) 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 Vyacheslav Vladimirovich Lyubimov (“the applicant”), on 14 August 2013.

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. On 10 June 2014 the complaint concerning the length of pre-trial detention was communicated to the Government and the remainder of the application was declared inadmissible.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1981 and lived, prior to his arrest, in Sibay, Bashkortostan Republic.

5. On 11 December 2009 the applicant was arrested on suspicion of drug trafficking. On an unspecified date he was charged with smuggling cocaine into Russia (three counts), transport of cocaine (three counts); preparation to distribution of cocaine (three counts), all the crimes being committed by an organised group.

6. On 12 December 2009 the Tverskoy District Court of Moscow remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of serious crimes, (2) his involvement in crimes was confirmed by the evidential material in the case file, (3) he had no permanent job, source of income and did not reside at his domicile, and (4) he might abscond or interfere with investigation. The judge also took into account the applicant’s character. The applicant remained in detention pending investigation and trial.

7. On 20 February 2012 the Kirovskiy District Court of Saint-Petersburg convicted the applicant as charged and sentenced him to sixteen years’ imprisonment.

8. On 25 July 2012 the Saint-Petersburg City Court acquitted the applicant of the charges concerning transport of cocaine due to lack of corpus delicti, re-characterised the charges concerning cocaine smuggling into attempted smuggling, reduced the applicant’s sentence to fourteen years’ imprisonment and upheld the judgment in the remaining part.

9. On 22 May 2013 the Presidium of the Saint-Petersburg City Court quashed the judgments rendered in the applicant’s case by way of supervisory review and remitted the case for a new examination. The Presidium also extended his pre-trial detention stating that the applicant could abscond. The court also took into account the applicant’ character.

10. On 20 June 2013 the Kirovskiy District Court extended the applicant’s pre-trial detention on the ground that he was accused of serious crimes, could abscond, commit crimes and that he did not have any permanent job.

11. On 20 August 2013 the Saint-Petersburg City Court upheld this decision on appeal.

12. On 10 February 2014 the Kirovskiy District Court of Saint-Petersburg convicted the applicant.

13. On 16 June 2014 the Saint-Petersburg City Court upheld the applicant’s conviction on appeal.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

14. The applicant complained under Article 5 § 3 of the Convention that his pre-trial detention had been excessively long and had not been based on relevant and sufficient reasons. Article 5 § 3, in so far as relevant, provides as follows:

“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.”

A. Admissibility

1. The parties’ submissions

15. The Government stated that the applicant had failed to inform the Court of developments in his case after the date of communication, and that the Court should not take into account the period of his pre-trial detention after that date.

The Government also submitted that the applicant’s pre-trial detention comprised two non-consecutive periods. The first period started on 11 December 2009 and ended on 20 February 2012 when the applicant was convicted. On 25 July 2012 the appeal court upheld this judgment. The second period lasted from 22 May 2013 to 17 October 2013. Hence in accordance with the six-month rule the Court shall take into account only the second period of the applicant’s pre-trial detention.

16. The applicant did not comment.

2. The Court’s assessment

(a) Period to be taken into consideration

17. The Court observes that, as pointed out by the Government, in the present case the applicant’s pre-trial detention comprised two distinct periods: (1) from 11 December 2009, when the applicant was arrested pending criminal investigation against him, to 20 February 2012, when he was convicted by the Kirovskiy District Court, and (2) from 22 May 2013, when the Presidium of the Regional Court quashed the verdict and the appeal judgment, to his conviction on 10 February 2014 by the District Court. In between those two periods the applicant’s first conviction became final, when upheld by the appellate court on 25 July 2012, and the applicant, for more than a year, served a prison sentence.

18. The Court considers that the issue in the present case is whether the two periods of the applicant’s pre-trial detention can be assessed cumulatively. The Court answers this question in the negative. In the Court’s view, the fact that the applicant’s conviction became final once upheld on appeal and he started serving a prison sentence had the effect of triggering the application of the six-month rule referred to in Article 35 § 1 in respect of the first period of his pre-trial detention (see Nasakin v. Russia, no. 22735/05, §§ 81 - 85, 18 July 2013).

19. Having regard to the above, the Court finds that the six-month rule should be applied, separately, to each period of pre-trial detention. Accordingly, the Court cannot consider whether or not the first period was compatible with the Convention. The applicant’s complaint with regard to the detention period from 11 December 2009 to 20 February 2012 should be declared inadmissible as being lodged out of time. However, the fact that an applicant has already spent time in custody pending the same set of criminal proceedings, should, in a given case, be taken into account by the Court in its assessment of the sufficiency and relevance of the grounds justifying the subsequent period of pre-trial detention, which the Court is competent to examine (see, mutatis mutandis, Idalov v. Russia [GC], no. 5826/03, § 130, 22 May 2012).

20. In the circumstances of the present case, the Court considers that the applicant’s complaint under Article 5 § 3 of the Convention in respect of his detention from 22 May 2013 to 10 February 2014 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. As it is not inadmissible on any other grounds, the Court declares it admissible.

(b) Failure to inform the Court of developments in the applicant’s case

21. In so far as the Government contest the scope of the applicant’s complaint, the Court observes that the present case concerns the allegedly excessive nature of the applicant’s pre-trial detention. By lodging his application with the Court, the applicant complained of a situation in which he had already been for some time, and which seemed set to last. In these circumstances, any subsequent developments in the criminal proceedings against him would not have affected the core of the matter underlying his complaint under the Convention, because some period of his detention had already taken place. Accordingly, the Court is unable to find that a lack of information about further extensions of the applicant’s detention and his second conviction could have had a decisive influence on its judgment, or could have prevented it from ruling on the case (see Neumeister v. Austria, 27 June 1968, p. 34, § 7, Series A no. 8; Kalinin v. Russia [Committee], no. 54749/12, § 18-21, 19 February 2015). It finds the Government’s argument without merit and of no legal consequence to the proceedings.

B. Merits

22. The Court has already, on numerous occasions, examined applications against Russia raising similar complaints under Article 5 § 3 of the Convention and found a violation of that Article on the grounds that the domestic courts had extended an applicant’s detention whilst essentially relying on the gravity of the charges and merely using stereotypical formulae without addressing his or her specific situation or considering alternative preventive measures (see, among many others, Mamedova v. Russia, no. 7064/05, 1 June 2006; Pshevecherskiy v. Russia, no. 28957/02, 24 May 2007; Shukhardin v. Russia, no. 65734/01, 28 June 2007; Belov v. Russia, no. 22053/02, 3 July 2008; Aleksandr Makarov v. Russia, no. 15217/07, 12 March 2009; Lamazhyk v. Russia, no. 20571/04, 30 July 2009; Makarenko v. Russia, no. 5962/03, 22 December 2009; Gultyayeva v. Russia, no. 67413/01, 1 April 2010; Logvinenko v. Russia, no. 44511/04, 17 June 2010; Sutyagin v. Russia, no. 30024/02, 3 May 2011; Romanova v. Russia, no. 23215/02, 11 October 2011; and Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012).

23. Turning to the circumstances of the present case, the Court notes that there is no reason to arrive at a different conclusion in the present case.

24. The applicant was kept in pre-trial detention from 22 May 2013 to 10 February 2014, i.e. for eight months and twenty days. On 22 May 2013 the Presidium of the Saint-Petersburg City Court referred to the possibility of absconding as the only ground for the applicant’s pre-trial detention. The judges also stated that they took into account the applicant’s character. However they did not develop this argument.

25. On 20 June 2013 the Kirovskiy District Court extended the applicant’s pre-trial detention de facto using a stereotyped formula.

26. The Court considers that the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

27. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. 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 did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint concerning the excessive duration of pre-trial detention from 22 May 2013 to 10 February 2014 admissible and the complaint concerning the excessive duration of pre-trial detention from 11 December 2009 to 20 February 2012 inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention.

Done in English, and notified in writing on 11 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Branko Lubarda
Deputy Registrar President

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