THIRD SECTION

CASE OF KASHPRUK v. RUSSIA

(Application no. 37894/07)

JUDGMENT

STRASBOURG

8 December 2015

This judgment is final but it may be subject to editorial revision.
In the case of Kashpruk 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 Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 17 November 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 37894/07) 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 Andreyevich Kashpruk (“the applicant”), on 7 August 2007.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  On 17 February 2014 the complaints concerning the applicant’s unlawful detention and lack of speedy review of this detention were communicated to the Government and the remainder of the application was declared inadmissible.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1958 and is detained in Yuzhno‑Sakhalinsk, Sakhalin Region.
5.  The applicant was accused of three counts of aggravated sexual assault and one count of being an accessory to traffic safety violation causing death of two or more persons. During the pre-trial investigation against him he was released on an undertaking not to leave his place of residence.
6.  On 4 June 2007 the applicant did not appear at the preliminary hearing scheduled by the Yuzhno-Sakhalinskiy Town Court and the Town Court ordered the applicant’s detention instead of his undertaking not to leave the place of residence. The detention order contained no time-limits. The relevant part of the order read as follows:
“The preliminary hearing was scheduled by the court for 29 May 2007...
The accused Kashpruk V.A. duly notified of the hearing did not appear and submitted to the court a copy of a medical record certifying that he undergoes treatment in the MUZ 4 [a hospital].
In order to verify this information the hearing was adjourned until 31 May 2007. The accused was duly notified of it.
However, once again he did not appear for the hearing and on 1 June 2007 informed the court that between 29 May and 7 June 2007 he is undergoing medical treatment and ... cannot participate in the hearings.
The preliminary hearing was adjourned until 4 June 2007 and the accused was duly notified of it, however he did not appear without presenting any reasons for his absence.
According to the certificate provided by the chief physician of the MUZ 4 the accused is indeed undergoing treatment for upper respiratory tract infection [but] his health condition does not prevent his participation in the court hearings.
This information is coherent with the written statement of the a judge of the [Town Court], which indicates that Kashpruk took part in a hearing on 29 May 2007, where he acted as a defense counsel for Mr R., ... and the testimony of the justice of the peace... that on 31 May 2007 Kashpruk consulted the administrative case file against Mr L., Mr B., and Mr K.
In view of these circumstances the prosecutor submitted a motion for [detention of the applicant].
The defense counsel Mr M., appointed by the court, disagreed...
As it had been established in the court hearing Kashpruk is accused of grave offences. [He had been] previously convicted. [His] character references are mostly negative, he is characterized as inclined to violate lawful requirements imposed on him.
The impossibility to take part in the hearing is disproven by the actions of the accused, who actively takes part in court hearings representing other persons.
[The applicant was informed multiple times about an obligation to take part in court hearings and about consequences of the failure to do so]
Under these circumstances the failure of the applicant to appear for the scheduled hearings is considered by the court as wilful obstruction to proceedings in the criminal case...”
7.  On 6 June 2007 the applicant appealed against the order.
8.  On 8 June 2007 he was arrested and remanded in custody.
9.  On 15 June 2007 the applicant’s appeal was sent to the other party.
10.  On 19, 20, 21, 22 and 25 June 2007 the applicant complemented his appeal.
11.  On 20, 21, 25 and 26 June 2007 the Town Court sent the applicant’s additional pleadings to the other party.
12.  On 26 June 2007 the Town Court transmitted the case file to the Regional Court.
13.  On 28 June 2007 the Regional Court notified the parties about the date of the hearing scheduled for 18 July 2015.
14.  On 2 July 2007 the applicant lodged an application for release which was examined and rejected on 9 July 2007. The Town Court refused to examine the applicant’s arguments concerning the deficiencies of the detention order of 4 June 2007 pending the appeal of the latter. It further rejected as unsubstantiated the applicant’s argument relating to his medical condition.
15.  On 3, 10 and 12 July the applicant complemented again his appeal.
16.  On 5 and 16 July 2007 the applicant’s complementary appeals were sent to the other party.
17.  On 18 July 2007, that is one month and eleven days later, the Sakhalin Regional Court quashed the detention order on appeal and released the applicant. The Regional Court found that the first-instance court failed to comply with the procedure prescribed by Article 247 of the Code of Criminal Procedure providing that a measure of restraint cannot be modified if no such measure had previously been ordered.
18.  On 26 July 2007 the applicant was placed under an undertaking not to leave his place of residence.
II.  RELEVANT DOMESTIC LAW
19.  Under Article 247 of the Code of Criminal Procedure, if the accused failed to appear without a valid reason the domestic court can order a coercive measure in his respect, such as bringing to court, application of a measure of restraint, replacement of the previously chosen measure of restraint by a more stringent one.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
20.  The applicant complained that his detention between 8 June and 18 July 2007 was unlawful. He relied on Article 5 § 1 of the Convention, which reads 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...”
A.  Admissibility
21.  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.
B.  Merits
22.  The Government indicated that when quashing the detention order of 4 June 2007 the Regional Court had not retrospectively declared the applicant’s detention under that order unlawful. The deficiency identified was of procedural nature and based on the fact that the previous decisions applying another measure of restraint were not included in the case file. In any event, the Government asserted that under the domestic legislation the first-instance court could have issued a detention order even if another measure of restraint were not previously applied in respect of the applicant. In view of the above, the Government considered that the quashing of the detention order of 4 June 2007 did not render the applicant’s detention between 8 June and 18 July 2007 unlawful (see Riccardi v. Romania, no. 3048/04, §§ 53-54, 3 April 2012).
23.  The applicant reiterated his complaints.
24.  The Court finds that there is no need to examine the arguments raised by the Government because the applicant’s detention during the period complained of should in any event be considered as unlawful under the Convention.
25.  The Court reiterates that detention pursuant to Article 5 § 1 (c) of the Convention must embody a proportionality requirement (see Ladent v. Poland, no. 11036/03, § 55, 18 March 2008). For example, in the case of Ambruszkiewicz v. Poland (no. 38797/03, §§ 29-32, 4 May 2006) the Court examined whether the applicant’s placement in custody was strictly necessary to ensure his presence at trial and whether other, less stringent, measures could have been sufficient for that purpose.
26.  In the present case the Court observes that before and after the period complained of the applicant was not detained but placed under an undertaking not to leave his place of residence (see paragraphs 5 and 18 above). Even when he failed to appear, he informed the Town Court about the reasons thereof. It results in any event from the decision taken by the Town Court on 4 June 2007 that it was perfectly aware about the applicant’s whereabouts when deciding to remand him in custody (see paragraph 6 above). It has never been alleged that the applicant was evading justice or hiding. The Town Court should thus have considered the application of other, less stringent, measure than detention (see Ladent, cited above, § 56). However, it failed to do so. Thus, the Court finds that the detention order imposed on the applicant in these circumstances could not be considered a proportionate measure to achieve the stated aim of securing the proper conduct of criminal proceedings.
27.  The foregoing considerations are sufficient to enable the Court to conclude that the applicant’s detention between 4 June and 18 July 2007 was unlawful.
28.  There has accordingly been a violation of Article 5 § 1 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
29.  The applicant complained that his appeal against the detention order of 4 June 2007 had not been decided “speedily”, as the respective hearing had not taken place until 18 July 2007. He relied on Article 5 § 4 of the Convention which reads as follows:
“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.”
30.  The Government contested that argument. They considered that there was no delay or procrastination on the part of the authorities, the only delays were attributable to the applicant who complemented his initial appeal seven times. In addition, they considered that in assessing whether the domestic courts complied with the requirement of speediness it should be born in mind that the applicant had a possibility to lodge an application for release pending the examination of his appeal and that he effectively used this possibility.
31.  The Court reiterates that where an individual’s personal liberty is at stake, it has very strict standards concerning the State’s compliance with the requirement of speedy review of the lawfulness of detention (see Mooren v. Germany, no. 11364/03, § 74, 13 December 2007, and compare, for example, with Kadem v. Malta, no. 55263/00, §§ 44-45, 9 January 2003, where the Court considered a time-period of seventeen days in deciding on the lawfulness of the applicant’s detention to be excessive, and Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006, where the length of appeal proceedings lasting, inter alia, twenty-six days, was found to be in breach of the “speediness” requirement of Article 5 § 4 of the Convention).
32.  In the present case the Court considers that there is no need to examine whether the applicant contributed by his own actions to the length of the appeal proceedings because in any event most of the delay is attributable to the authorities. It first observes that the initial appeal was lodged by the applicant’s representative on 6 June 2007. However, its copy was communicated to the other party only on 15 June 2007 that is nine days later (see paragraph 9 above). Further, on 28 June 2007 the Regional Court informed the parties about the hearing scheduled for 18 July 2007 that is twenty days later (see paragraph 13 above). The Government did not provide any justification for these periods of the authorities’ inactivity.
33.  Finally, the Court is not convinced by the Government’s argument that the applicant could lodge an application for release pending the examination of his appeal against the detention order of 4 June 2007. It is noted in this respect that while examining the application for release the Town Court refused to address a substantial part of the applicant’s arguments precisely because they were to be examined by the appeal court (see paragraph 14 above). Consequently, the delay in the examination of the applicant’s appeal had also adverse consequences on the examination of his application for release.
34.  Having regard to the above, the Court considers that the appeal proceedings for the review of the lawfulness of the applicant’s pre-trial detention cannot be considered compatible with the “speediness” requirement of Article 5 § 4 of the Convention. There has therefore been a violation of that provision.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35.  Lastly, the applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings against him had been unfair.
36.  Having regard to all the material in its possession and in so far as these complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
37.  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
38.  The applicant claimed 868,765 Russian roubles (RUB) in respect of pecuniary damage which corresponded according to him to various losses he sustained in relation to his professional activity. He also claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
39.  The Government argued that his claims were excessive and unreasonable. They referred in this respect to the case Rakhmonov v. Russia (no. 50031/11, 16 October 2012) in which the applicant was awarded EUR 1,000 for the same combination of violations. They also considered that the applicant’s claim of pecuniary damage was unsubstantiated.
40.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 3,000 in respect of non‑pecuniary damage.
B.  Costs and expenses
41.  The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.
C.  Default interest
42.  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 complaint concerning the lawfulness and review of the applicant’s detention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention between 8 June and 18 July 2007;

3.  Holds that there has been a violation of Article 5 § 4 of the Convention on account of the lack of a speedy review of the applicant’s detention as authorised by the court order of 4 June 2007;

4.  Holds
(a)  that the respondent State is to pay the applicant EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable on 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 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 claims for just satisfaction.
Done in English, and notified in writing on 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Helena Jäderblom
	Deputy Registrar	President